Alzheimer’s and Dementia Part 2

 

According to the law firm of Cohen and Oalican, elder law attorneys in Boston, MA, there are 5 specific conversations adult children should have with their parents as soon as the opportunity presents itself. They comprise the following:

1. Long-term care preferences

Would your parents prefer nursing home, long term care, or in-home care if there had to be a choice?  If they prefer a long term care or nursing home facility, what amenities and activities are important to them? Asking these questions early can smooth the moving to an assisted living facility or a home-health care program far simpler should the need ever present..

2. Legal Documentation

What good is a living will if no-one knows where to find it?  It is critical that you know what legal documentation your parents have before incapacity occurs. This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf.  In absence of this documentation, the family can be forced into petitioning a court for control over their parents.  This can be expensive, time consuming, and may not result in what your aging parent wanted with their lives.

3. Medical Preferences and Wishes

Please discover what type of, and how much care your aging parents want as soon as possible after their initial diagnosis of Alzheimer’s or Dementia. Understand their desires about life support and  other end-of life medical treatments. Who do they want to make these decisions for them if and when they can’t?  This will help your parents' security in knowing that their desires in this area will be carried out, despite the family trauma that enfolds itself around Alzheimer’s and Dementia.

to be continued….

Durable Power of Attorney and Health Care Proxy - FAQ Part 1

Durable Power of Attorney and Health Care Proxy

1. Does everyone need a power of attorney and health care proxy?

Absolutely.

These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.

2. Could I be held liable for my actions as attorney-in-fact?

Yes, but only if you act with willful misconduct or gross negligence such as stealing money from your principal. If you do your best and keep your principal’s interest in mind as the basis of all your actions, you will not incur any liability.

3. When does the power of attorney take effect?

Unless the power of attorney is “springing”, it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians. Section III of your power of attorney indicates whether it is effective immediately or is springing. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used until he or she becomes incapacitated. You should discuss this with the principal so that you know his or her wishes.

4. What if there is more than one attorney-in-fact?

Depending on the wording of the power of attorney, you may or may not have to act together on all transactions. In most cases, when there are multiple attorneys-in-fact they are appointed “severally”, meaning that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.

5. Can I be fired?

Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send you a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.

Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.

Home Care as An Alternative to Nursing Home Care

Home Care as An Alternative to Nursing Home Care Part 1

By Denise Leydon Harvey

If you or an elder or disabled person you know are living at home but need more care than you or your loved ones can provide, you should consider the services of a (PCA). A PCA is someone who can assist you with daily living needs in your own home, or in your assisted living facility. PCA services are specifically intended to allow elders or disabled people to remain at home when the alterative is a nursing home or other in-patient facility. PCA services are available to anyone covered by MassHealth who meets certain eligibility requirements.

The types of services offered by the MassHealth PCA Program include assistance with personal care needs, such as bathing, grooming, eating, getting dressed, and helping with medicines as well as housekeeping needs that include laundry, meal preparation and the like. To benefit from PCA services because of a disability, you should do the following:

1. If you are applying for MassHealth, include the Senior Medical Benefit Request form with your application
2. If you are already a MassHealth member, submit the MassHealth Eligibility Review Form.

If MassHealth determines that you are eligible for PCA services, you will be advised to contact a MassHealth PCA agency in your area to set up services. The Council has established a directory for consumers to use in searching for qualified PCAs. The directory can identify PCA candidates from its database based on several different criteria, including proximity to the consumer, language, skills, transportation, preferred hours and so forth. MassHealth does not screen PCAs, so the directory does not represent a screened or qualified list of potential providers. However, the consumer may call references and request a CORI background check for any potential PCA before hiring. The directory is accessible and free to anyone who is eligible for PCA services by registering online using your MassHealth number.

This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.




Part 2 to follow

Cohen & Oalican discuss Elderlaw Planning and the UPC

Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.

Welcome to the Uniform Probate Code cont'd

ADVANCED DIRECTIVES

There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.

A. Power of Attorney

In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.

The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3

(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.

This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer