after the diagnosis (leslie fried)

8/7/2019 After The Diagnosis (Leslie Fried)

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Alzheimers Issues:

After the Diagnosis

Leslie B. Fried, Esq.

Commission on Law and AgingAmerican Bar AssociationAlzheimers Association Medicare Advocacy Project

National Press FoundationDecember 6, 2010


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Alzheimers Disease: By the Numbers

5.3 million people with Alzheimers disease,including 200,000 people under the age of 65with the disease

11 million caregivers

250,000 children between the ages of 8-18who are providing care


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What We Will Address

Key steps to get affairs in order after thediagnosis of a serious illness, like Alzheimers

disease

Plan how to pay for health care and support Make a plan to manage health and personal

decisions

Make a plan to manage money and property

Plan for the care of dependents, business,and estate

Get legal documents in order


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Plan How to Pay for the Health Care and

Support Needs

Employer-based disability benefits Some employers have short-term or long-term disability

insurance

Social Security disability benefits Recent SSA decision to fast track disbility decisions for

individuals with Alzheimers disease

Supplemental Security Income benefits Means tested program by SSA

Veterans benefits Broad array of financial benefits


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Plan How to Pay for the Health Care Needs

Medicare Primary payer for individuals with Alzheimers disease; eligible at

65 or after 24 months on SSDI

Private health insurance Employer-based or private insurance

Long term care insurance

Medicaid Federal/state program for low income individuals and children

Each states program is different

Veterans benefits Broad array health care benefits, including long-term care benefits

and nursing home care


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Make aP

lan to Manage Your Healthand Personal Decisions

At some point, someone else will have to

make health care decisions for the individualwith dementia

Who will be the decision maker?

What guidance will be provided in advance?

How will it be communicated?

Health care advance directive documents


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Health Care Advance Directives

In the 1970s -1980s, states generally enacted

multiple laws: LivingW

ill,H

ealth Care Powers ofAttorney with overlap from consent laws.

Today about half the states have combined/comprehensive Advance Directive laws

But still much variation in detail, especially focusedon forms.


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What are the different Advance Directives

Living Wills

Directive that provides guidance or instructionabout the care and decisions wanted

Usually includes specific instructions on life-sustaining conditions

Power of Attorney for Health Care

Choose an agent/proxy (and successor) to makehealth care decisions if unable to make them

Should be someone who can be a strongadvocate and willing to make difficult decisions


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Communication is Key to Advance Planning

Not every medical decision can be anticipated

Communicate wishes, quality of life goals,values and priorities that are important

Discussions are difficult but most important forloved ones and the individual with the disease


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Advance Care Planning

Less focus on formal instructional documents

Legal focus primarily on naming a proxy

Discussion oriented (with proxy, family, healthcare providers)

More broadly focused on goals + values,spiritual questions, family matters

Less treatment focused, more on quality of life

Conversion of goals to a portable plan of care:POLST if available


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Default Surrogate Laws

(Family Consent)

Range/Priority of Surrogates

Scope of Decision Making Authority

Triggers/Pre-conditions

How Disagreements are Handled

But they rarely address the UnbefriendedPatient

Summary chart:

http://new.abanet.org/aging/Pages/StateLawCharts.aspx


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Make a Plan to Manage Money &

Property

Planning for management of affairs while alivehelps maintain control to the greatest extent

possible Variety of legal tools

Powers of Attorney

Representative Payee

Joint bank accounts Inter-vivos or Living Trusts

Advantages and disadvantages to all of them


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Powers of Attorney

For property

Durable since planning for incapacity

Document by which one person(principal) gives legal authority to another(agent) to act on behalf of the principal.

Generally must be signed & notarized.

Governed by state law


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PoA Advantages/Disadvantages

Promotes autonomy puts you indrivers seat

Avoids guardianship

Cuts costsHelps family members

Lack of monitoring

Unclear standards for agent conductLack of awareness of risks

Broad decision-making authority


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Types ofPOA Abuse

In creating of the POA (power given, not taken)

Incapacity at execution

Forgery/Fraud/Misrepresentation

Undue influence

Implementing POA (agent is a fiduciary)

Transactions exceeding intended authority

Transactions conducted for self-dealing Transactions contravening principals expectations


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Brooke Astors Son Guilty in Scheme to Defraud Her

Wealthy NY socialite Brooke Astor, Alzheimers, age 105

Estate more than $180 million

Son served as power of attorney

Gave self unauthorized raise of $1 million

Other counts of financial exploitation

Neglected mothers care while enriching self

Exemplifies financial

elder abuse


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Build Protections into DPA

Choose someone you trust

Limit gifting powers

Require co-signatory on importanttransactions

Require periodic accountings

Revokable as long as still have capacity Seek advice of attorney to customize &

ensure meets state law requirements


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OtherOptions

Joint Bank Accounts: pros & cons Provides easy access to funds to pay bills Joint owners have complete access to all funds Funds may be available to pay joint owners debts Upon death surviving joint owner may become sole

owner regardless of will

Inter-vivos orLiving Trust: pros & cons Legal arrangement created by contract Holds property for the benefit a person or persons Can provide for management of assets during

incapacity, avoid probate and provide for care ofminors or disabled persons

Can be expensive to draft, to transfer property into thetrust and to pay a professional trustee (if used)


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OtherOptions

Representative Payee If receive SSA, civil service, railroad

retirement, VA benefits, these agencies mayrequire an individual to be appointed as arepresentative payee

Once appointed, the rep payee has authorityto manage the relevant income but no anyother income or assets.

Rep payee may have to file an annual report

(SSA)


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Other Key Planning Considerations

Develop a succession plan of a business Including power of attorney to run a business and buyout agreements

Consider applying for other public benefits, if appropriate Including food stamps, state prescription drug benefit programs, energy

assistance

Prepare a Will Legal document that provides for distribution of some or all property at

death If a single parent of a minor or disabled child, can designate a guardian

of the child

Plan for the care of Dependents Nominate or appoint a guardian for minor/disabled child Arrange for financial support for minor/disabled child


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Guardianship

Individual (or agency) appointed by court(probate, general jurisdiction) . . . .

With power and duty to make personal and/or

financial decisions . . . .

On behalf of another person . . .

Whom court determines lacks decisional

capacity. Terminology guardian conservator and

more


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Guardianship:

A Double-Edged Sword Parens patriae roots of guardianship

Guardianship unpersons individual (Associated

Press, 1987) Loss of fundamental rights

Inherent Tension

Between rights and needs

Between autonomy and beneficence

Between self-determination and protection


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How is a Guardian Appointed?

Any person files petition

Notice, possible appointment of counsel,

guardian ad litem, court visitor Hearing

Judicial order plenary or limited

Bond


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Principle of Least Restrictive Alternative

Growing use of alternatives to guardianship

Representative payee

Power of attorney

Trust Supports such as money management

Guardianship as LAST RESORT

Enactment of limited guardianship provisions

Use of substituted judgment standard ofdecision-making


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Get Legal Documents in Order

Collect all important legal documents

Including birth certificate, citizenship papers,advance directives, power of attorney, trust

documents, Will and more Store important legal documents in a safe and

accessible location.

Let people know where the important

documents are kept


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Conclusion

When faced with diagnosis like Alzheimersdisease, its critical to get financial and legalaffairs in order.

Communicate with family, close friends andtrusted legal/financial advisors.

Understanding options and making informeddecisions can help maximize control andminimize anxiety at a difficult time.