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!

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. 

A Grand ‘Ol Time: Grandparents Raising Grandchildren

By A. Frank Johns, JD, LLM, CELA

This year National Grandparents Day falls on Sunday, September 11 but as I was searching for more information about the holiday (which is observed the first Sunday in September after Labor Day annually), I couldn’t help but notice the abundance of articles related to grand-parenting as a primary caregiver. This trend is certainly on the rise.

According to the AARP GrandFacts sheet for North Carolina, 90,093 children in our state “live in homes with grandparent householders where grandparents are responsible for them. Of these children 38,941 or approximately 43% have no parents present in the home which puts North Carolina well above the national average of 38%. What’s more, of these North Carolinian grandparents acting as primary caregivers, 23% live in poverty while the national average is almost 20%, (AARP GrandFacts for the United States).

This type of family situation immediately brings to mind the legal system in terms of custody, guardianship, consent laws, adoption, etc., all issues most commonly handled by family law attorneys. But what about taking care of your grandchildren after you’re gone? Estate planning becomes crucial on an entirely new level.

Consider this: in most grandparent-as-guardian-of-grandchild situations the grandparent does not legally adopt their grandchild. Legal adoption is a last resort option reserved by the courts for those scenarios in which a grandparent must become a child’s permanent legal guardian in the child’s best interest. Parents’ rights are not easily taken away forever. In most cases the grandparent is not his or her grandchild’s legal parent, but does act as his or her primary caregiver. In order to ensure that the child will be taken care of should anything happen to you it would be wise to take a look at doing some estate planning with a qualified attorney. Family dynamics may change quickly and frequently; make sure that all your documents reflect your wishes at any given time.

As North Carolina’s first elder law firm, I encourage you to come utilize our expertise in estate planning. Give our Greensboro office a call, toll-free, at (877) 503-5337. Our intake specialist, Norma, would be happy to offer you a free 30-minute estate planning consultation to get you started. Happy Grandparent’s Day!

Being Seen as Old When You Don’t See It: Better Watch Out for What You Don’t See

The headlines in recent years have touted how the Baby Boomers are hitting retirement; a euphemism for getting old. As many articles have down right chortled at the way Boomers have been trying to hold on to youth with surgical good looks and youthful appearance.

Such was the recent wire service article that hit many daily papers and even various enews outlets. First published by Kim Hone-McMahon on June 13 for the Akron Beacon Journal, http://www.ohio.com/news/first/they-re-too-young-to-be-called-old-1.214891 it splashed across my local paper (Greensboro News & Record) on Monday, July 4^th titled “Too young to be Called Old.” The picture in our paper was of a mature couple walking down a road. The caption read, “Today’s 65 year-olds are different. They bleach their teeth, dye their hair, join health clubs, all things that prevent being able to tell their age.” The subtitle read, “Senior citizen centers finding it tough to draw in visitors.”

Not only are Boomers not going to any places that have “Senior” in their titles, they are not doing any estate or elder law planning either. The reasons have no justification in reality – “That’s for old people”; “If I start planning for my death, then I’ll die sooner” or “As soon as I sign that will I’ll probably get sick and die.”

Being seen as youthful and treated as young is appreciated, but it has its dark side. We may hide our age by looking, feeling, and acting young, but the simple truth is Boomers are not young any more. Call it later middle-age, or what ever makes you feel young, but Boomers will come face-to-face with old age when they lose that which defines old age – health! The logical consequence of the aging process is the increased risk of acute or chronic medical and health situations. If Boomers wait until they have lost their health to do end of life, estate planning and asset preservation, it may be too late. If not too late, the options will be limited and the legal expense substantially higher.

So, take a youthful step to assuring the quality of your health and your assets – meet with an elder law attorney to plan for those years far, far away when you will be old. Contact us at www.nc-law.com for an appointment or for more information.  

Advance Directives

By A. Frank Johns, JD, LLM, CELA

As we age there are a number of decisions we should make related to our health care, finances, and even end of life. These decisions allow us to make our wishes known to family, friends, health care providers, financial and legal professionals. We often refer to this as “getting our affairs in order.”

Although this commonly-used term is one with which most of us are familiar, many people are uncertain about what’s involved and how to get started. I realize that many of these decisions can be complex, confusing and overwhelming. As a result it is easy to avoid dealing with them.

A good place to start is to understand advance directives.

What are Advance Directives? Advance directives is the broader title for those legal documents that are created for future legal, health, financial and estate planning. Understand that advance directives include powers of attorney and more.

[Remember that this is not to be considered legal advice to you individually, but general legal information that everyone needs to know.]

How Many Types of Advance Directives Are There? These are the most common in North Carolina. A brief description is provided for each.

1. Will
2. Trusts
3. Financial Durable Powers of Attorney (FDPOA)
4. Health Care Powers of Attorney (HCPOA)
5. Natural Death Declarations (Living Will)
6. Do Not Resuscitate Orders (DNR)
7. Medical Orders for Scope of Treatment (MOST)

[It is important to note that names and functions may differ in other states.]

Will. This is the paper writing that declares who you want to have your personal things, your money and investments, and all of your real property when you die. You must carefully sign, have witnessed and usually have notarized the will in order for it to be filed and accepted (probated) with court or estates department in the county where you die. Trust. This is usually a written document (created either during your life, called inter vivos, or after you die, called testamentary) that you create that transfers actual ownership of your designated personal and real property into a trust that is managed and controlled by the person or entity you name as trustee.

Financial Durable POA (FDPOA). This type of Power of Attorney or Advance Directive enables you to appoint and empower another person to handle your financial and personal affairs. It remains effective even after the maker becomes incapacitated.

Health Care Power of Attorney (HCPOA). This type of Power of Attorney or Advance Directive outlines the specific medical decisions that you would like to see made in the event of your incapacity and appoints an Agent to carry out your wishes.

Natural Death Declaration (Living Will). This is a written declaration created during a time when you are competent that declares whether or not you want extraordinary means taken to keep you alive at a time when you are in your last illness and are unable to make such declarations.

Do Not Resuscitate (DNR). This is a doctor’s order placed in your patient file that declares that it you are in the throes of death, medical and health care providers and all others are not to try to revive you or bring you back to life. Medical Order for Scope of Treatment. This is an order entered by a physician outlining your wishes and care plan for the end of your life. It will go into effect when you are in the last stages of a chronic progressive disease, or when you have less than one year to live.

Different Names for Persons or Entities Named in Advance Directives.

1. Will – Usually the person creating the will is called the Testator; the person or entity responsible for the will’s administration after the testator dies is the Executor.
2. Trust – Usually the person creating the trust is called the Settlor; the person named to administer the trust after it is executed is called the Trustee.
3. Financial Durable Power of Attorney (FDPOA) – Usually the creator of the FDPOA is the Grantor; the person named to act on your behalf and conduct your affairs is the Agent. An agent of a FDPOA is also known as an Attorney in Fact.
4. Health Care Power of Attorney (HCPOA) - Usually the creator of the HCPOA is the Grantor; the person named to act on your behalf and conduct your affairs is the Agent. An agent of a HCPOA is usually not called an Attorney in Fact.
5. Natural Death Declaration (Living Will) – There is no person or entity directed to act, this is simply a declarative statement of your wishes to whomever may find you.
6. Do Not Resuscitate Order (DNR) – This is usually created by an attending physician or doctor at a hospital where you are admitted.
7. Medical Order for Scope of Treatment (MOST) - This is usually created by you or your patient representative with an attending physician or doctor at a hospital where you are admitted.

Who Should You Appoint?

It is important to consider those you completely trust to represent you in any of the advance directives described above. This can be a spouse, a child, another close relative, a member of your church, a close friend, a long time neighbor, a long time banker, financial or investment professional with skill or expertise in will administration, trusts, finance or health care.

Can Advance Directives be Changed Once in Place? Simply, yes. However, once you are mentally unable to understand what it is you are signing, the advance directive cannot be changed and becomes permanent until you die, or for powers of attorney until a guardian is appointed. How Often Should Advance Directives be Reviewed? Generally, advance directives should be reviewed annually. However, if important changes have occurred in your life, review should occur at that time, or at the time you become aware of changes in the laws affecting advance directives.

Take Action. If you don’t have advance directives in place, what are you waiting for? If you do have advance directives but need to update them, can you afford to delay?

Visit our website to make an appointment today.

The Medicare “Improvement Standard”

Though not a true facet of the legal system, the Medicare “Improvement Standard,” that rule by which if a doctor does not anticipate possible improvement, one can be denied for Medicare coverage, is quite often strictly applied. The Center for Medicare Advocacy is currently beginning a new initiative to ban application of the “Improvement Standard.” In order to affect change, the initiative includes lobbying the Obama administration, litigation, and a broad education program.

As the Center states, “Although the Improvement Standard conflicts with the law, it has become deeply ingrained in the system and ardently followed by those who provide care and those who make coverage determinations throughout the health care continuum. Beneficiaries are told Medicare coverage is not available if their underlying condition will not improve, if they have 'plateaued,' are not likely to improve, or if they need 'maintenance care only'. As a result it keeps people with debilitating, chronic conditions from receiving the care they need. This practice persists although the Medicare Act does not require improvement as a precondition to coverage for illness or injury. Further, the federal regulations state that 'restoration is not to be the deciding factor' in making Medicare coverage determinations."

If you or someone you know has been handed an unfavorable Medicare coverage option, the law firm of Booth Harrington & Johns may be able to help. For information, please visit our website at www.nc-law.com or call toll free at 877-50-ELDER.

To read more in depth on the Center’s initiative, visit http://www.medicareadvocacy.org

AT THANKSGIVING Show your thankfulness by Having the FamilyTalk - Has Your Family Had THE TALK?

For many years at Thanksgiving, our law firm has promoted ways to help families begin a dialogue about issues concerning aging and end of life.  We didn’t want to miss the opportunity again this year to remind our readers of the importance of paying attention to loved ones as they age.

The Cost of Not Talking. Families tend to avoid talking about difficult topics and the consequences can be costly – both from a financial and emotional perspective – particularly when it comes to long-term care and end of life issues.  In our experience, families who have navigated the tricky terrain of talking openly with each other about these issues tend to fare better in their long term planning than those who ignore or delay  the inevitable.  With the holiday season right around the corner, as you make plans for Thanksgiving, Hanukah, Christmas or New Years, here are facts and ideas that may be relevant to you and your family.

The national demographics have begun a dramatic shift towards a population with a greater percentage of citizens over 55, triggering questions concerning the quality of life for our nation’s senior citizens.  These discussions have not only reached a fevered pitch in the realm of politics and policies, but also the realities are affecting families on a very personal level.  Skyrocketing health care costs, changes to state and national laws regarding Medicaid and Medicare, senior housing alternatives and long-term care options are but a few of the issues facing families who have elderly parents and grandparents.  Answers are hard to find and frequently tough to understand.

The First Question? For many of the families we see on a regular basis, the first question is typically “where do we begin?”  If given the opportunity to script a scenario, we believe the best place to begin is by employing the powers of observation.  At your next family event, take note of how your parents or grandparents look and behave.

Consider the questions following the First.  Is Grandma well-groomed?  Is Dad having a hard time walking?  Can Mom see and hear all that is going on around her?  How is Grandpa’s memory?  Has Dad lost a lot of weight in a short period of time?  If you are at your parent’s home, does it appear to be tidy and clean?  Is there food in the refrigerator or cupboards?  Answering “no” to one or more of these questions may indicate your family member needs help with some of the activities of daily living.  If so, this is a good time to get other family members involved in sharing their own observations and initiate the first step in opening up the family talk and a great way to plan for future conversations.

It’s No Secret. It is no secret that families don’t always see eye to eye on many topics.  Discussing the well-being of your parents can conjure up memories of old childhood conflicts.  When possible, it is important to leave those conflicts at the door and keep in mind the bigger goal of what is best for Mom and Dad.  Like any good mediation session, it sometimes helps to identify one person most known for level-headed moderation to act as the point person for managing the dialogue.  If it helps, go with a list of all the questions or concerns that require family attention and consensus.  Working from a list can help keep everyone on topic and assure nothing is overlooked or forgotten.  Continue reading this issue of The Elder Law Voice for tips and a list of items for your comprehensive list.

Engage Your Compassion! Above and beyond it all, be sure to engage your compassion – with your parents and your siblings.  With luck, guidance and some concrete skills you may find this journey together a rewarding one.