Frankly Speaking Blog - North Carolina's First Elder Law Firm

National Healthcare Directives Day – April 16

As uncomfortable as it may feel, creating or updating Wills, Health Care Powers of Attorney (HCPoA) and Durable Powers of Attorney (DPoA) may be one of the most important things people can do. Often, people are afraid of making the wrong choices and knowing that their loved ones will have to live in the aftermath of those decisions. Our job is to guide our clients through the difficult decision making process in way that will maximize their legacy and add to the quality of the lives of their surviving loved ones.

Most people know that they need a Will, and know what a Will does. But what people often fail to realize is the importance of having a Health Care Power of Attorney (HCPoA) and a Durable Power of Attorney (DPoA).

The HCPoA is a document that allows a person to make decisions about the types of medical care they would like to receive in the event that they are unconscious or otherwise unable to tell doctors and family members what medical treatments they would like to receive. The person signing the HCPoA, called the “Grantor,” also appoints a person, called the “Attorney-In-Fact,” to see these directives through and make decisions when unexpected issues arise. The HCPoA only takes effect when the Grantor is unable to make decisions for himself, and serves as a directive for family members and physicians (as apposed to a Living Will, which takes effect only when the Grantor is unable to make decisions about his medical care and his condition is terminal). The HCPoA takes into account things like whether the Grantor would like artificial nutrition, hydration, and even whether or not they would like to be an organ donor. In other words, the Grantor can make decisions in this document that will dictate the kinds of medical care you will receive. He can also elect to allow the Attorney-in-Fact make decisions that override his directives, knowing that the Attorney-in-Fact may be privy to information that is not currently available to the Grantor (such as the chances of success of a particular treatment for an injury, etc.).

A DPoA serves a similar purpose, allowing the Grantor to appoint an Attorney-in-Fact to make financial decisions on behalf of the Grantor. Unlike the HCPoA, a DPoA is active as soon as it is executed (unless the document expressly states otherwise), which means that clients need to consider very carefully who they choose to appoint as their Durable Power of Attorney. A DPoA that takes advantage of all relevant North Carolina law will allow the person selected to make gifts, access bank accounts and records, and to have the authority to do anything that the Grantor could have. Of course, all of the powers can be limited, depending on the needs of the Grantor.

It is important for every individual to have these documents prepared. If you do not have a Will, Health Care Power of Attorney, Durable Power of Attorney, and Living Will that are current with North Carolina’s new laws, you should seriously consider executing each of these documents. An experienced North Carolina elder law attorney can help you draft documents that will enforce your health care choices, make sure your surviving family members are planned for, and will guide you to make decisions in a way that will allow your surviving loved ones peace of mind in knowing that things were dealt with in the way you directed.

If you would like help in creating these documents, please contact us at (336) 275-9567 or on the web at www.nc-law.com. We’re here to help!

Quality of Care: A Case of Life and Death

By A. Frank Johns JD, LLM, CELA.

For many caretakers of the elderly who require long term care, one of the most terrifying decisions is where to seek residential placement.  Which facility will best serve their elderly friend or relative’s needs? When placing a loved one in a long term care facility, no one wants to worry about their loved one being subjected to abuse, neglect, or worse.  In the worst of cases, the elderly resident may even be vulnerable to murder.

Braquette Wykina Walton, an employee of a Rock Hill assisted living home, was charged Thursday with murdering an elderly resident after the resident accused her of stealing her checks, totaling over $1,200.  The employee attempted to conceal the murder by making it look like a fall, but the coroner's office did not believe that the resident's injuries were consistent with that of a fall. In this case, the assisted living facility performed a criminal background check before hiring Walton and found that she had no serious criminal history. However, assisted living facilities and nursing homes often do not perform proper background checks on their employees, leaving many unsuspecting elderly residents vulnerable to incidents like this. 

Before you seek residence for a loved one at any assisted living facility or nursing home, you should speak with someone who has experience working with that facility and can vouch for its reputation.  One relatively easy way to get an idea of a facility’s level of care is to read reviews of the facility, which can often be found online. Try speaking with current residents in order to determine the quality of life your loved one will experience while there.

The attorneys at Booth Harrington and Johns of NC, PLLC have years of experience working with long term care facilities in North Carolina and, as your attorneys, will serve to give you unbiased and accurate advice when choosing a place for your elderly loved one. If you believe someone you know may have been the victim of abuse or neglect, we also have years of experience in representing clients with claims against assisted living facilities, nursing homes, and individuals.  Give our office a call toll-free at (877) 503-5337 to speak with one of our staff about your needs.

Has Medicare Failed You?

By A. Frank Johns, JD, LLM, CELA

In a recent New York Times article, former Times reporter Jane Gross disclosed the “dirty little secret of health care in America,” (“How Medicare Fails the Elderly”). She contends that what Medicare paid for beginning back in 1965 is not “what recipients need or want today,” (“How Medicare Fails the Elderly”). She suggests that America’s health care vision did not take into account the stunning medical advances that keep people alive into advanced old age. Neither did it anticipate the “dangers”, not to mention the “pointlessness and expense of much of the care Medicare is providing.”

Gross details several specific bullet points to make her argument – feeding tubes, abdominal and gall bladder surgery, and tight glycemic control for Type 2 diabetes. For all of theses things covered by Medicare, Gross notes that Medicare rarely pays for long term care in supervised, safe places for frail or demented old people.

Gross goes on to explain the financial burden for home health aides, and the private cost ($14,000 per month for her mother). Gross also mentions a recent state-by-state study of long-term care which found that “essential long-term care costs from 166% to 393% of the average annual income of America’s elderly,” (“How Medicare Fails the Elderly”).

There are ways to access those services which are provided by Medicare, while at the same time gaining eligibility or other means tested governmental services to which elders have rights. Find out more by visiting our website at www.nc-law.com and if needed, make an appointment for an elder law consultation.

 

Medicaid More Helpful to Seniors than Medicare?

By A. Frank Johns, JD, LLM, CELA

Does Medicare provide American citizens with worthwhile services?  The medical advances that might enable one to live into advanced old age are often not covered by Medicare. In fact, a question often asked by the elderly, their caretakers, and their children is, “What is covered by Medicare?”  For those considering residence in a nursing home in the near future, the question of whether Medicare is helpful is one that induces a helpless shrug of the shoulders, or a sigh of frustration; that, or sometimes rage.

The average cost of a nursing home in North Carolina ranges from $5,000 to $7,000 a month for private pay.  If the person seeking assistance happens to have special needs or requires a higher level of care, it is not uncommon for monthly healthcare costs to exceed $10,000. For even the most fore-thinking Americans, this cost of living increase easily drains a well funded retirement account in a matter of years.  Thousands of Americans need skilled nursing care and have life expectancies beyond the next few years while few have the money required to ensure their care.  Many find themselves in need of nursing care early in retirement due to stroke, dementia, or other chronic diseases, while still expected to live well into their 70’s or 80’s.   

Most people think that Medicare will cover their "medical costs." They have another “think” coming about Medicare.  Neither does Medicare pay for long-term care, nor does it cover all of the costs associated with providing eligible Medicare recipients with in-home aides to help with daily routines, like bathing, cooking, or transportation.  While Medicare does cover the cost of occasional doctors’ visits, medicines, surgeries, and a couple of hours of in-home care, it typically does not (to the shock of many) cover nursing home stays.  

America has another program that covers the cost of skilled-nursing care, whether it’s in a nursing home or administered in the privacy of the patients own home: Medicaid.  While most people think of Medicaid as a program for only the poor or impoverished, it is in fact a program that may help families in most economic situations to receive the services needed for the care for elderly or disabled loved ones.

If you are planning to help a loved one transition into a nursing home, or have a loved one in need of skilled-nursing care, please contact Booth Harrington and Johns of NC, PLLC at (336) 275-9567. As North Carolina’s first elder law firm, we are board certified and A rated in providing legal services that address asset preservation, eligibility for Medicaid and the Medicaid application process. We can help you plan for needed benefits. 

Long Term Care Scorecard

By A. Frank Johns, JD, LLM, CELA

A new study that compared the quality of long-term care services in states across the country has ranked North Carolina in the top half of the US for state-funded services for the elderly and adults with disabilities.  The State Long-Term Services and Supports Scorecard, a collaboration between AARP, The Commonwealth Fund, and The SCAN Foundation, ranked state long-term care services in 25 categories in four main areas: Affordability & Accessibility; Choice of Setting & Provider; Quality of Life & Quality of Care; and Support for Family Caregivers. According to the scorecard, North Carolina is the 24th best state for long-term care services.

But even among the highest-performing states, the surveyors found room for improvement.  The survey emphasized the importance of home- and community-based options for care, in addition to traditional institutional settings, as well as the need to monitor the performance of skilled nursing facilities, also known as nursing homes.  Options beyond the nursing home provide flexibility so that families may direct their own services, and help community members who want to stay in their homes fulfill those desires.

North Carolina scored highest, seventh among the fifty states, in Choice of Setting & Provider, mostly due to the number of home health and personal care aides per person age 65 and older, 75 per every 1,000, and for the percentage of new Medicaid long-term care users receiving services in the community, 67.3%.  However, even within this area, North Carolina scored very low when it came to people with disabilities directing their own services, only 0.10 per 1,000.  Overall, North Carolinians can rest assured knowing that as they grow into their elder years, there are lots of choices when it comes to long-term care providers in the state.

North Carolina also scored high, eleventh, on Affordability & Access.  This is because of the relatively low cost of nursing care and home care paired with the wide availability of North Carolina Medicaid for those in need of long-term care.

North Carolina scored lower on Support for Family Caregivers.  Caregiving for an elder person is one of the most stressful jobs a child, relative, or family friend can take on, and providing support for caregivers is a key component of supporting the elder population overall.  In this area North Carolina ranked thirty-fifth due to low scores in categories such as legal and systemic supports for caregivers, and the percentage of caregivers who usually or always get needed support which was only 77.8%, according to a survey of caregivers.

North Carolina scored lowest in the areas of Quality of Life and Quality of Care.  This area measured things such as nursing home staff turnover, rates of employment among disabled adults, satisfaction of the recipients of care which was based on surveys, and the prevalence of pressure sores, or bed sores, among long-term care recipients—a key indicator of quality of care.  In this area North Carolina ranked only forty-fifth.

You can see the full results of the report here, and North Carolina’s scorecard here.

North Carolinians can take some comfort in the fact that, overall, long-term care services provided in their state compares favorably with that of other states; however, there is tremendous room for improvement, especially regarding Quality of Life and Quality of Care.  As elder law attorneys, our first priority at Booth Harrington & Johns of NC PLLC is the quality of life of our clients, and our long experience in the field allows us to help our clients make wise choices when planning for and choosing long-term care services.  Please contact us at (877) 503-5337 to learn how we can help you and your family navigate the difficult choices one faces in caring for an elderly family member.  

Elder Care Issue on the Rise: Self Neglect

By A. Frank Johns, JD, LLM, CELA

Whether in institutions like nursing homes, or in our own neighborhoods and families, many of us realize that elder neglect and abuse continue to be a problem in our society. The National Committee for the Prevention of Elder Abuse estimates that 4-6% of the elderly are abused. But a related, though less familiar, condition is far more prevalent: self neglect.

Self neglect occurs when elderly people stop taking care of some, or all, of their basic needs in a way that threatens their own health or safety. Of all instances of elder mistreatment reported to Adult Protective Services, self neglect is the most common. There are several medical reasons someone might begin to neglect themselves: depression, dementia or other memory loss, generally declining health, alcohol or drug abuse, (Frequently Asked Questions on Elder Abuse). But self neglect can occur even without a “logical” explanation. Some elderly people may not ask for the help they need to accomplish self-care tasks, while others refuse the help that is offered.

The National Center on Elder Abuse lists these signs as possible symptoms of self neglect: dehydration, malnutrition, weight-loss, poor personal hygiene, unsafe living conditions or arrangements such as heating or cooling of a home, unsanitary living conditions, inappropriate or inadequate clothing, lack of necessary medical aids such as hearing aids, walkers, glasses, inconsistent or complete lack of use of prescription medications. While the list is lengthy, it is not entirely comprehensive, as self neglect is not completely understood yet as a phenomenon.

Perhaps the most frustrating aspect of this common problem is the lack of “perpetrator.” In widely publicized instances of elder abuse, caretakers are responsible for neglecting or harming the elderly physically, emotionally, financially, etc. In these cases the person responsible for the harm has committed a crime. But in the case of self neglect, outsiders may avoid intervening. Addressing issues of self insufficiency may be embarrassing for both the concerned and the elderly person, particularly when about personal and private matters such as personal hygiene.

What can you do? Depending on your relationship with the senior you’re concerned about choose a strategy that’s most comfortable to you. You might talk with the person and address the issue head on. Even though this tactic might seem embarrassing, it is also the most direct and precise way to let someone know you’ve noticed things aren’t quite right. If this isn’t an option, try raising your concerns with someone close to the senior. If this avenue doesn’t seem to produce any results, you might try calling the trained professionals at Adult Protective Services in your area. As always, if someone is in immediate, life-threatening danger, call 9-1-1. Most importantly do something. Stay aware and observant, and when the opportunity arises, educate others about this trend.

If you need legal assistance concerning elder abuse or neglect, call us at Booth Harrington & Johns of NC PLLC at (877) 503-5337. From making financial arrangements for long-term care, to obtaining guardianship, to filing a complaint of elder abuse, we can help.

Living to 100: Facts and Figures

By A. Frank Johns, JD, LLM, CELA

Even the Ancient Greek philosopher, writer and thinker Plato was contemplating the progression of time and what it means for the human condition. In The Republic he wrote “He who is of calm and happy nature will hardly feel the pressure of age…” This certainly seems to be true of the lively bunch of centenarians featured in the articles on http://www.thecentenarian.co.uk. This British website showcases people from all over the world who have lived to be 100 or older. The site offers profiles of individuals, advice for living longer from the centenarians themselves, as well as compilations of data about their lifestyles, habits and beliefs. Here are a few facts and figures from the site for your contemplation this week:

Location and geography:

• The United States has the most centenarians of any nation – 72,000.
• Japan’s centenarian population is growing the fastest and has almost quadrupled in the last ten years.
• The person to have lived the longest, according to verifiable documentation, was Frenchwoman Jeanne Calment who lived to be 122. She was born in February 1875 and passed away in August of 1997.
• On average, the Japanese live longer than any other nationality.
• In a region of Nova Scotia known as the “longevity belt,” centenarians are 3 times as numerous per capita as in the U.S.

Lifestyle:

• Most centenarians never smoked or drank alcohol heavily.
• Many centenarian women had children later in life, past 40.
• Eating a healthy diet and exercising throughout life has been linked to longevity.
• Stress reduction or the ability to cope with stress is very important for living a longer life. The site goes so far as to suggest that centenarians seem to share an innate ability to deal with stress.
• Most centenarians have strong spiritual beliefs and many are active in organized religion.
• In industrialized nations most centenarians have had some degree of higher education, but even those without educational opportunities had active minds through their lives, actively seeking mental stimulation and learning.

Unusual:

• A specific gene has been linked to living longer, the so-called Methuselah gene. In a study, worms with a particular variant of the gene caused the production of the IGF-1 hormone to be reduced. These worms were significantly smaller than their counterparts, but lived twice as long.
• 85% of the centenarian population is female.
• Resveratrol, a flavonoid found in the catechins of red wine, may cause longer life. Current research by a Harvard scientist has shown that when fish were given the substance their lifespan increased by 59%.
•  All citizens of the United Kingdom and its territories receive a telegram from the Queen on their 100^th, 105^th and every birthday thereafter.

Ultimately the website makes clear that there is no way to predict who will live to be 100; centenarians come from every walk of life. Whatever the future holds, it’s certain that planning for the worst and hoping for the best is always the safest option. Come meet with one of our attorneys to help you in that process. We can be reached toll-free at (877) 503-5337 or emailed at info@nc-law.com. We look forward to serving you.

Senior Housing 101

By A. Frank Johns, JD, LLM, CELA

Navigating the world of senior housing options can be a confusing endeavor for anyone so this week I want to familiarize our readers with the basic types of communities and facilities out there. Traditionally, care facilities are categorized by the level of care their residents require. The three major care levels, from least to most intensive, are:

Independent Living: Independent living communities (also known as retirement communities) are residential homes exclusive to seniors, generally people over 55 years-of-age. They can be entire neighborhoods consisting of single family homes, townhomes, or single apartment buildings. As the lowest level of care, these facilities may offer assistance with tasks like yard-work and/or transportation as well as community events or activities. Like the name states, independent living is for seniors who are essentially self-sufficient but would like to move into an area focused on the needs of elderly adults with a few basics.

Assisted Living. The next level of care is provided at assisted living facilities, also known as residential care homes, adult group homes, or alternative care facilities. At this level residents receive care concerning daily living activities such as cooking, laundry, housekeeping, travelling to and from appointments, as well as medication management. Most also provide recreational and social programs. These organizations provide 24-hour support and access to care for their residents, but less immediate access to medical services.

Skilled Nursing Facilities. Traditionally considered the highest level of care, skilled nursing facilities or nursing homes offer 24-hour availability to medical professionals such as doctors and nurses. Beyond helping with daily living activities these professionals provide custodial care which includes helping with feeding, bathing, dressing, going to the bathroom, etc. These facilities are commonly misperceived as serving only seniors on a long term basis but in fact nursing homes may be utilized in a rehabilitation capacity after surgery or illness for patients of any age.

While these are the most common types of senior housing, there are two more that should not be disregarded when considering which option is best for you or your loved one.

Senior Villages. At this type of establishment many different levels of care exist under the same management. Independent living, assisted living, and nursing care are all commonly available and even memory care may be offered. In this scenario, residents may start out living independently, but as more intensive care is needed they are able to move to another section of the village. This set-up provides residents with a consistent and familiar environment no matter how their needs may change.

Hospice and Palliative Care. Hospice facilities are traditionally reserved for those whose life expectancy is six months or less, and are no longer focusing on curative treatment. Palliative care is any type of treatment that focuses solely on relieving the patient’s symptoms such as pain. One does not have to be in the last stages of life in order to receive palliative care; for example, cancer patients undergoing chemotherapy may use palliative care to relieve the nausea that often accompanies radiation therapy. Since pain relief is a serious concern for many hospice patients, most hospice facilities also offer palliative care services. Hospice services use a team of professionals to make sure a patient’s last days can be spent with comfortably and with dignity. Team members can include spiritual resources such as ministers or spiritual advisors, doctors, nurses, counselors, dieticians, among many others. Services such as grief counseling may even be offered to family members.

To be sure, this is only the very tip of the iceberg when it comes to senior housing options and health care providers are constantly coming up with new ways to better serve seniors. There are a number of good resources out there, but one you may find particularly helpful is www.helpguide.org. I referred to the article Understanding Senior Housing Options and their links about each type of care. I hope these brief summaries have helped to familiarize you with a few of the available alternatives for residential care.

If you or a loved one is transitioning to a new home and you need some guidance on options right for you, consider calling us at Booth Harrington and Johns of NC, PLLC. As North Carolina’s first elder law firm we specialize in finding ways for you and your family to afford the high costs of long term care. Call us toll-free at (877) 503-5337 and read about our team at www.nc-law.com.

Can Dying Be Postponed?

By A. Frank Johns, JD, LLM, CELA

National Public Radio recently featured a story by gerontologist, Mark Lachs, who supports the claim that the older you get, the older you’re likely to keep getting! First you might ask, what is a gerontologist? Gerontology is the study of aging from a biological perspective which includes everything from laboratory studies and statistical analysis to face-to-face work with individuals in nursing homes and hospitals. Now on to his seemingly outrageous claim: “At the extremes of age… the death rate drops,” (“In Old Age, Illness And Dying Can Be Postponed”).

According to Dr. Lachs, this “postponement theory” was originally penned by James Vaupel, the founder of the Institute for Demographic Research at the Max Planck Institute, after studying the lives of yeast, fruit flies, worms and humans. David Stipp’s article in Fortune magazine explains that initially, researchers in the field of gerontology assumed “death rates rise exponentially with age in adult animals, including humans – the older you are, the theory goes, the more likely you are to die,” (“Hell No, We Won’t Go! Surprising Demographic Trends Raise a Tough Question”). But Vaupel’s strange band of subjects seemed to point to the exact opposite – once a certain age was reached, death and illness became less likely. Dr. Lachs calls this “escape velocity,” a kind of biological parallel to the old physics law that says bodies in motion tend to stay in motion.

What’s more, Vaupel found that this pattern was not restricted to living things. He finished his study by looking at the death rates for cars of all things! Vaupel considered the “death” of a car to be when it’s owner stopped registering it, presumably because it no longer exists. Vaupel found that after a decade of use the cars he studied were less likely to “die” than their younger counter parts. “Dr. Lachs says his older patients are like reliable cars. After a certain age, they are less likely to break down, and just keep rolling right along,” (“In Old Age, Illness And Dying Can Be Postponed”).

What does all of this seemingly contradictory data mean? As an engineer says, “Our grandmother always said, ‘People don’t wear out, they rust out,” (Don Feigenbaum, qtd. in “How You Can Live Well and Long”). Let us help you prepare for whatever the future holds at Booth Harrington & Johns of NC, PLLC. We specialize in the area of elder law to help you protect yourself, your assets and your loved ones. Call us toll-free at (877) 503-5337 and explore our website at www.nc-law.com. We look forward to helping you plan for the future.

Virtual House Calls: The Next Frontier

By A. Frank Johns, JD, LLM, CELA

When I was growing up, our doctor would make house calls when a member of my family was sick and needed medical treatment. Today, house calls are taking on a new meaning thanks to new technology such as Skype and Oovoo that use video conferencing to connect patients with their physicians.

These new virtual house calls provide many of the same benefits that my family and I had access to when I was a child. Not only does it allow patients to meet with their physician right in the privacy of their own homes, but it no longer requires the doctor to travel to another destination. Patients can be more comfortable, while having access to a broader range of specialists outside those in their community.

This type of care is especially helpful to people with chronic conditions such as Parkinson’s disease where patients often struggle to find specialist to manage their disease. Dr. Ray Dorsey, a movement disorders specialist at Johns Hopkins Medical Center in Baltimore Maryland is using virtual house calls to see his patients regularly. To read more about Dorsey and his use of virtual technology, click here.

I am thrilled to find something from my childhood make resurgence with the help of a little dose of the latest technology!

P.S. We make house calls at BH&J. If you or a member of your family would like to meet with an attorney and are unable to travel to our office, we are happy to come to you. Just let us know. Visit our website www.nc-law.com for more information.