William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Getting the Most Out of Long Term Care Facilities

By Jacquelyn Miner, Elder & Disability Law Clinic Student, Fall 2018

In the clinic, we often hear from clients who know that they are facing the impending “doom” of being placed in a nursing facility for care. This seems like an ill fate for many reasons including the loss of autonomy, concerns about the quality of care, and of course, the financial cost. With this jumbled sense of fear, often the benefits of nursing facilities are unrealized or disregarded.

Nursing facilities provide numerous benefits including, but not limited to, 24hour/7days a week care, social opportunities, activities, and dietary services that are designed for specific patient needs and likes.

Prior to starting law school, I was fortunate enough to work in two wonderful skilled nursing facilities. I started as an Admissions Assistant and later became the Activities Director. In this role, I saw how hard nursing facilities work and how deeply the staff cares for each and every resident. I knew that myself, and every department head, were familiar with every patient and knew their exact and unique needs relative to the department. But, I also learned how quickly or how easy things could take a bad turn if people were careless or apathetic.

As a patient or family member, there are small actions you can take to protect yourself, your piece of mind, and ensure that you are reaping all of the benefits facilities may offer.

  1. Participate in Care Plans – Facilities funded by, or accepting, Medicare and Medicaid are required to provide interdisciplinary care plans that are reviewed and updated at least These care plans address every need of the patient – nursing, dietary, psychosocial well-being, and therapy (if applicable). With the reviews, the facilities are required to have a care plan meeting at least annually where the patient and family are invited to attend.

These meetings provide detailed reports about the well-being of the resident and provide the family and resident an opportunity to add their opinions or responses to that plan, and then changes are made accordingly. If you do not participate, then you are throwing away an invaluable opportunity to take control of our own or your loved one’s care.

  1. Have conversations and interact with the staff – Every facility is equipped with an interdisciplinary staff. Regularly reach out to the department heads and ask questions. Learn what they do, and can do, for you. Talk to the nurses and CNAs who care for your loved ones. They spend so much time with your family members and can provide updates on their well-being. Be familiar with the staff so that they are familiar with you and more constantly thinking about you and your needs specifically.

If you have a problem, let the staff know. They want to help you, but they often are not made aware of issues that are affecting you, directly or indirectly.

  1. If you are family – Visit (Not just at the holidays) – As an Activities Director, I worked hard to ensure that every patient had social contact or activities every day. Although the staff and residents ultimately became one big family, it did not eliminate the need or desire for “blood” family contact. Additionally, the more the family is willing to visit and get involved with activities, residents are more willing to regularly leave their rooms and participate. Leaving the room and getting active is a great way to stay sharp, healthy, and improve your attitude.

Overall, the most important thing you can do for yourself, or loved one is to be present and active. Both you and the facility will benefit from a healthy working relationship and can eliminate the sense of “doom.” Being an active participant in your own care will allow you to retain autonomy and ensure that the quality of care is meeting your standards and is personalized to your needs.

Four Quick Tips to Help Your Family Through Probate

By Brittany Midgette, Elder & Disability Law Clinic Student, Fall 2018

Making an estate plan can be a difficult task. However, it is important to keep in mind that your estate plan is not only for you. Having a proper estate plan takes some of the stress off of loved ones’ hands because it means you have done some of the work for them. You have provided the road map for them to follow. If you do not have a plan in place, it can mean that your family has to make difficult decisions at a time when they are not in the best mindset to do so. There are many things you can do now to make the process easier for family members later on. Here are some quick tips to keep in mind:

  • Choose an executor carefully. If you are choosing among your children who should be your executor, you should not choose your executor simply based on who is the oldest child. Your executor should be someone who is best equipped to manage your assets, complete documents for the court, and is able to handle conflicts fairly and calmly. Choosing the proper executor is essential to having your probate process run smoothly.
  • Talk to your family sooner rather than later. After you’ve executed estate planning documents, it is important to discuss your plan with your family. At the very least, your proposed executor should know that he or she is going to be your executor, so your executor can be prepared. Talking to your family now about your plans means less surprises later on when you are no longer able to discuss your reasons behind your decisions.
  • Keep good records of your assets and finances. You should have documents on all of your assets and finances, and you should keep them together and in a safe place. The value of your assets determines the type of estate you will have, and therefore the type of filing and process to distribute your estate. Often, family members don’t have any idea of the assets an individual has or what institution these assets are held with. Having documentation for these things already compiled for your executor will prevent them from going on a wild goose chase or being surprised later on.
  • Tell your executor where your will is. Make sure your family members, especially your executor, knows where you keep your will and/or other estate planning documents. If you’ve executed these documents, you’ve done a good thing, but if no one can find the documents when they become necessary, it will make the process much more difficult than it needs to be.

By following these guidelines, you can help make a difficult situation a little less difficult for your family.

Facing Eternity

By Sarah Spencer, Elder & Disability Law Clinic Student, Fall 2017

“Thou know’st ’tis common; all that lives must die,
Passing through nature to eternity.”

Hamlet Act I, scene 2, line 72.

What do we do when it comes time to make a decision that entails facing those things which scare us most? Usually, our first instinct is to just not face it—to not make that decision. We leave those uncomfortable truths for our future selves, saying “not today,” or “I’ll be better equipped to face that down the road.” However, the cost of ignoring those problems, of temporarily soothing our fears, doesn’t fix anything. In fact, it usually just makes those problems worse, looming larger and larger in our imaginations until it robs us of the very peace we’re trying to preserve by ignoring those problems in the first place.

One of the most uncomfortable truths any of us have to face in our lives is the fact that we are mortal. Making provisions for when we leave this life forces us to think about our loved ones in a world without us, which is usually not a pleasant task. Consequently, some people choose not to think about it until it’s too late. Others begin to face this decision but become emotionally overwhelmed—unable to make a choice or commit.

This latter situation is exactly what I experienced with my client, Mrs. Sweet[1]. She has been in the process of drafting her will for over a year now. While she has modest assets, she never seems able to commit to a plan. Perhaps this reflects how a person’s life constantly changes and the difficulty in creating one document to reflect the variety and richness of that. However, I sense that it has more to do with worry—worry over what will become of her children when she’s gone. Worry that she’ll get this big decision wrong.

I used to be like Mrs. Sweet with all my big decisions. But, one of the simplest and most life-changing lessons I’ve learned is that you must force yourself to be brave and tackle things head on. Even if it still turns out a mess, I’m always glad I did. And so should everyone, especially when it comes to that scariest of decisions. Everyone leaves this world at some point, so there’s no use denying it. It’s better to commit to a plan than wind up with no contingencies or control at all. Then when the inevitable happens, we’ll be ready and comforted by the knowledge that things will be done how we would have wanted, easing the burden of our passing for our loved ones.

 

[1] Pseudonym for client’s actual name.

Planning Ahead: The Importance of Securing an Action Plan

By Taylor McGraw, Elder & Disability Law Clinic Student, Fall 2018

When I was a child my grandparents were my world. For years they watched and took care of me as my parents worked long hours. When I was fifteen my grandmother developed this routine storytelling and questioning, where she would ask, “What grade are you in?” more than once a day, and began telling the same story on repeat about the grocery store cashier. It all happened very quickly, as more obvious medical problems presented themselves, and when she stopped eating, my grandfather took her to the hospital.  She was diagnosed with Alzheimer’s Disease at 77 years old.

My grandfather looked after her for years without the assistance of another. He, unlike her, was in excellent health, tending to her every need, reminding her of the daily tasks of life, and reminiscing with her as if it were 1957 again. It wasn’t until he fell off a ladder while cleaning the gutters in 2011 that serious changes affected both their lives – changes that should have been accounted for years before.

After undergoing surgery to fix his broken hip, he developed severe dementia from the anesthesia. Just like that, both my grandparents’ memories were gone. We learned neither of them had a health care directive, power of attorney, or any financial plans as to how they would spend their remaining days. The money they had spent their whole lives earning and saving disappeared in an instant when the state absorbed their assets as we scrambled to sign them up for Medicaid.

The remaining years of their lives were spent in a facility where they whittled away physically, as their minds had left them years ago. For almost 6 years, they lived in a nursing home, not knowing who they were or who we were. When they died in 2016, only 7 months apart, they were barely a fraction of the people they once were.

My dad, who eventually became their guardian, never pushed to have the hard conversation with them about what they wanted for their future, or what would happen to them and their assets should they become incapacitated. Don’t wait until a traumatic event forces the family to consider these answers. A simple consultation with an Elder Law Attorney would have prepared and given both my dad and my grandparents the peace of mind for whatever life brought.

It is never too early to prepare for yours or your loved one’s future. Death is part of life, whether it be imminent or distant. Each person deserves to have a say in their future health and financial state. Elderly people especially, from my grandparent’s generation, are often reluctant to discuss things of this nature, but their reluctance or potential disinclination is never a reason to avoid the conversation. I firmly believe if both my grandparents had all the information at the time they were fully competent, they would have chosen a different path than the one chosen for them.

Thoughts on Leaving the Elder & Disability Law Clinic: Surprises, Concerns, and Paying It Forward

By Paige Melton, Elder & Disability Law Clinic Student, Spring 2018

This week marks the end of my two-semester run working in the Elder & Disability Law Clinic.  Working in the EDLC has been an incredible experience for me; and I know other students, past and present, share in my sentiment.  I thoroughly enjoyed the substantive work, the clients, and the Clinic’s positive environment.  However, I know that not everyone gets to have this experience.  So, I would like to share some about what surprised me, what concerned me, and my parting encouragements.

Let me start by saying there are a lot of resources and options available to seniors and disabled individuals in our legal system and community.  For instance, estate planning provisions allow for one’s voice and options to be memorialized, and there is a host of benefits available to the financially needy and disabled. However, I was very surprised at how long some people will wait to take advantage of these opportunities.  Perhaps it is the unpleasant topics of death and incapacity that make people hesitant to be proactive, or just simple procrastination, but several times I observed clients or potential clients waiting until the last minute to put estate planning documents in order.  In some instances, their delay prevented them from enjoying the opportunities that could have otherwise been available to them.  During my tenure with the EDLC, I never observed a case where waiting was a good thing.

One major thing I will continue to encourage everyone[1] to do is create estate planning documents as soon as you have the ability.  Wills and Powers of Attorney can be modified or even revoked after execution—but having them in place now is vital to preserving one’s autonomy and wishes, should something unexcepted occur.

A second issue that surprised me, and remains a big concern for me, is guardianships.  There are countless elderly and disabled individuals in our community that desperately need guardians or conservators to help protect their best interests and property.  But sadly, for these individuals, there is no one available or willing to step into the role—perhaps no loved ones are close by to recognize their need, they do not have family or friends with the time or ability to serve, or maybe their disability has led them to ostracize themselves from any assistance.

Thankfully, there are some resources available.  There are Public Guardianships funded through the Commonwealth and there are also private charitable organizations that provide assistance. For example, Jewish Family Service and Catholic Charities both take on guardianships of elderly and disabled individuals in need.

However, the capabilities of these entities combined are not enough.  There are still needy people that “fall through the cracks.”  As of 2016, Virginia had only arranged funding for only 706 individuals across the entire state to be assisted by a public guardianship.  Furthermore, there are long wait lists for guardianships for both Jewish Family Services and Catholic Charities—particularly for impoverished individuals.  How many people remain in need? It’s incredibly difficult to tell—again, they have fallen through the cracks and the system is not able to account for their care and needs.

What I suggest people do, in light of these concerns, is donate![2] Please consider donating your time, attention, or any available resources to organizations that assist the aged and disabled.  For law students, consider enrolling in the Elder & Disability Law Clinic or volunteering for the regular pro-bono estate planning events in the area.  For attorneys, consider serving as a guardian pro-bono to someone in need.  For concerned citizens, volunteer or consider making donations to one of the several organizations in the area.

In doing these things, you bolster the ability for these entities to help the needy in your area. If that’s not persuasive enough, consider this—you may one day need these services—and it could be sooner than you expect.  Some consequences of aging or disability appear can appear suddenly, and wouldn’t it be comforting to know that organizations that are eager to assist are well equipped to meet increasing need? Think of any current generosity as your own system of Social Security—pay it forward, and hope that in the future, when you may need assistance, you have helped develop a pattern of generosity and the next generation will step up to assist you.

[1] This advice is not just for elderly or disabled individuals!

[2] Again, this advice is for everyone!

Providing Peace of Mind: How a Power of Attorney Can Help

By Christina Romine, Elder & Disability Law Clinic Student, Spring 2018

Growing older has many challenges and concerns. As children become caretaker of their parents, they may find themselves faced with many barriers that block their ability to fully care for their aging parents. HIPPA laws, for example, may prevent them from speaking to doctors about the elderly parents’ medical conditions or treatment. Banks, government agencies and other services may also give caretakers the run-around unless they have some sort of legal power over the elderly person.

Appointing an adult child or caretaker to be Durable Power of Attorney or Health Care Power of Attorney or both will help facilitate an easier process to allow an adult child to care for his aging parent. The key for both documents is that they must have been drafted and signed while the elderly person still had legal capacity. If the elderly person has pronounced Alzheimer’s or dementia, she will be legally unable to sign off on such documents.

A Durable Power of Attorney (also called a General Power of Attorney) appoints someone to be your Agent. This means that person can speak on your behalf, sign documents on your behalf, and sign checks on your behalf, among other powers. One of the benefits of a Durable Power of Attorney (DPOA) is that it is customizable. You can limit the powers of your POA to make decisions about your finances and property. A Health Care Power of Attorney (HCPOA) is like a DPOA except that it is limited to medical decisions. Your HCPOA will be able to talk to doctors on your behalf, decide when you enter a nursing facility or hospital, and make determinations about your medical treatment. Like a DPOA, it is customizable so that you may limit or expand the powers of your HCPOA to make decisions about your medical care.

You can also decide when the DPOA powers begin. A DPOA can either have immediate power once the document is signed, or the power can be “springing” – meaning that the DPOA does not begin functioning as your agent until a certain set of conditions has been met. Usually, this condition is that doctors have determined you are no longer capable of making decisions for yourself due to mental incapacity caused by Alzheimer’s or dementia.

If you do not appoint a POA and you eventually suffer from an advanced disease that affects your capacity, your caretakers may need to initiate a legal process called “Guardianship” to obtain the authority to make decisions for your care. Unlike a DPOA which can be completed at your attorney’s office with a notary, a Guardianship is a process through the courts. In this process, the court will appoint someone to be a “Guardian” over an incapacitated person. The powers of a Guardian are less customizable and it’s a much more expensive process because of the court fees involved.

By including Power of Attorney documents in your estate planning, you can have the peace of mind of knowing your loved ones will have the ability to assist in your care when you need it.

Aging and Autonomy

By Mat Snarr, Elder & Disability Law Clinic Student, Spring 2018

The William & Mary Elder & Disability Law Clinic provides services to elderly and disabled clients who are unable to afford the legal assistance they need.  Clinic students often assist clients with planning for long-term care.  Family members facing the decision of how to support aging loved ones understand how tough this can be.  Some of the main considerations are the cost of care and the preservation of individual autonomy.  Commonly, an elderly person is either physically healthy but suffers from diminished mental capacity or is physically incapacitated but mentally competent.

Care services for aging loved ones can place a great financial burden on families.  Currently, the national average cost for long-term care in the United States is $225 a day or $6,844 per month for a semi-private room in a nursing home.[1]  Private insurance and Medicare only cover long-term care in limited situations, and even then, the number of days covered is restricted.  The national average cost for a home health aide is $20.50 per hour.[2]  This cost varies depending on the time of day and the type of services provided.

I recently had the opportunity to work with Jack and Grace, a couple trying to obtain care and preserve their autonomy.[3]  Jack and Grace are both advanced in years but have still managed to care for themselves.  Both require walkers to navigate their residence and Grace often uses a wheelchair.  Recently, Grace’s mental capacity has begun to deteriorate.  Jack’s health has strained his ability to care for her.  Jack sought the Clinic’s help to evaluate options for acquiring home care for Grace through Medicaid.

After meeting with Jack and Grace, I evaluated their medical and financial eligibility for Medicaid.  It quickly became apparent that neither Jack or Grace qualified for the care they wanted through Medicaid.  Although both may be medically eligible for Medicaid, their financial situation made them ineligible.  If they arranged their limited assets to become financially eligible, they would lose their independence.  Due to Jack’s military service, another available option was a VA Pension.  Unlike Medicaid, VA pension deducts unreimbursed medical expenses from its financial eligibility calculations.[4]  If determined eligible, a VA pension could provide additional income to Jack to pay for home care.  After completing a financial analysis, I discovered that Jack was ineligible for a VA pension.

Jack and Grace have worked hard their whole lives to take care of themselves.  They have reached the point where their assets and fixed income preclude them from the benefits that they need.  If Jack and Grace reallocate their resources to qualify for benefits, they will lose their autonomy.  Unlike many people his age, Jack is still able to work part-time.  He hopes that his part-time work will provide the resources he needs to maintain his current living arrangements and provide Grace with the care she needs.  Unfortunately, Jack may be prolonging the inevitable, but that is his decision to make.

Clinic work at the law school is a rewarding experience. I feel great satisfaction in helping clients attain their goals and receive the benefits and legal services they need.  However, situations arise where clients have to make decisions that limit the Clinic’s ability to help them attain their goals.  These cases can be heartbreaking.

[1] https://longtermcare.acl.gov/costs-how-to-pay/costs-of-care.html

[2] https://longtermcare.acl.gov/costs-how-to-pay/costs-of-care.html

[3] Pseudonyms for clients’ actual names.

[4] https://www.benefits.va.gov/pension/current_rates_veteran_pen.asp

What’s the Difference? Unraveling SSI and SSDI

By Sara Sapia, Elder & Disability Law Clinic Student, Spring 2018

Clients often come to our clinic with the goal of applying for public assistance benefits through Social Security, primarily based on concerns of age, disability, or both. Social Security offers two types of benefits – SSI and SSDI. Many of our clients have applied for these benefits before but have been denied for one reason or another. It is common for clients to think they have applied for one program but have in fact applied for the other. The similar acronyms alone are enough to understand why people commonly confuse the two programs. However, SSI and SSDI have distinct purposes and are designed to provide benefits to different groups of people.

SSI stands for Supplemental Security Income and is meant to benefit low-income individuals who are aged, blind, or disabled. The benefit received through SSI is capped at $735 per month for an individual ($1,103 for a couple)[1] and is designed to allow an individual “to meet basic needs for food, clothing, and shelter.”[2] Applicants must show that they fall below the capped income and resource guidelines and also provide supporting medical documentation if they are filing as disabled. Additionally, if an individual is granted SSI, he immediately becomes eligible to receive Medicaid health insurance benefits in many states.  In Virginia, however, the individual must apply and meet separate qualifications for Medicaid benefits.

SSDI stands for Social Security Disability Insurance and is designed to assist individuals who become disabled during their employment years and are thereby no longer able to work. The monetary benefit received is based on how much an individual has paid into Social Security during her working years. This program, therefore, essentially acts as a way for individuals to access their Social Security contributions before they reach retirement age. Applicants must show that they are completely and totally disabled and unable to perform any work which is available to someone with their same physical and mental abilities.[3]

According to the most recent available data, first-time SSDI applications are denied at an alarming rate, approximately 72 percent.[4] For this reason alone, it is important to know and understand the unique requirements for each program in order to not waste time completing an application that does not fit a person’s needs or characteristics, particularly under SSDI. If a client is low-income and has only minimal work history, it makes more sense to file an SSI application. However, if a client has worked for a number of years and became disabled while working, it is best to start by applying for SSDI because it could yield a higher benefit amount for the client each month. It is also important to keep in mind that waiting times for Social Security applications can be extremely long, ranging from as little as three months to as long as one year, so clients should not immediately expect a decision on their application after it is submitted.

SSI and SSDI are therefore distinct programs with their own unique characteristics and advantages that should be well explained to clients prior to application. Additionally, before applying for benefits, individuals should seek assistance from a professional who understands the Social Security system and can guide them through the process.

[1] 2018 rates.

[2] https://www.ssa.gov/ssi/

[3] https://www.disabilitybenefitscenter.org/social-security-disability-insurance/how-to-qualify

[4] https://www.ssa.gov/policy/docs/statcomps/di_asr/2011/sect04.html

Can I cut my spouse out of my will?

By Bryony Harris, Elder & Disability Law Clinic Student, Spring 2018

Death is a natural part of life, and no matter what, you will eventually face it. When someone passes away, it is often a difficult and emotionally draining time. It is better to be prepared for this, not only for yourself, but also for your family’s sake. Being prepared for your own death will help them in this difficult period. A common way to make this process easier is to create a will. The will describes how you wish your estate to be managed and divided after you pass away. Many people decide to leave their estate to their family members, and often leave their entire estate to the surviving spouse; however, you may not want your spouse to inherit all or even part of the estate.

Even if the marital bliss has worn off, by law, you cannot necessarily cut your spouse out of the estate. Your spouse has certain rights at your death, regardless of whether you leave them anything in the will. Unless you have a written marital agreement, your spouse may claim an assortment of these rights: the elective share, the family allowance, the exempt property allowance, or the homestead allowance.

  • The elective share equates to 1/3 of your estate; your spouse is entitled to this portion. This share must be claimed within six months of probate of the will, but if claimed, it is paid before any other bequests. It is first paid from items that are owned jointly, and then from anything left to your spouse in the will. If this does not amount to at least 1/3 of the total estate, the balance will come from the residue of your estate, even if you have designated that portion to other beneficiaries.
  • The family allowance must be claimed within a year of your death. With this allowance, your spouse could collect up to $24,000 from the estate for support and maintenance during the period of estate administration.
  • The exempt property allowance allows your spouse to claim up to $20,000 in tangible personal property from the estate. This must be claimed within one year of your death. This allowance could include any personal items, such as cars, furniture, jewelry, or other individual items.
  •  The homestead allowance allows your spouse to collect an additional $20,000 from the estate. Your spouse must claim this within one year of your death.

First option: your spouse could decide to claim the elective share*, the family allowance, and the exempt property allowance either separately or together.

Second option: your spouse could decide to claim the homestead allowance*, the family allowance, and the exempt property allowance either separately or together.

 * Note your spouse cannot claim both the homestead allowance and the elective share.

Depending on the size of the estate, some allowances may be more lucrative or realistic than others. After your death, your spouse is not required to claim any of the allowances, but if your spouse does choose to claim any of them, they are automatic payouts. So, even if you choose not to leave your spouse anything in your estate, your spouse can claim these allowances and get a portion of the estate regardless of what the will says. Since these allowances are often unknown or misunderstood, they are something to be aware of and you should determine how you want to deal with your spouse’s rights ahead of time. In summary, although a will can make the process after death easier, there are limitations on what you can do with it and some inherent spousal rights cannot be avoided without a marital agreement.

An Unexpected Development

By Gulliver Brady, Elder & Disability Law Clinic Student, Spring 2018

In my limited experience as a pseudo-professional, I have learned that a 9:30 pm email usually comes with bad news, an assignment, and a stressful night. However, last week I received a 9:30 pm email that left me saddened rather than stressed. My client’s daughter emailed me to inform me that her father had passed away earlier that day.

Because mortality is a factor in most of the cases the clinic takes, I should not have been so shocked to learn of a client’s death. As this clinic specializes in elder law, the clients we represent are largely advanced in age. Many of our clients seek our assistance in end-of-life planning. We also help our clients secure the financial and medical aid they need as they age. The client’s passing was, nonetheless, shocking news.

I regret that I was unable to help my client in any tangible way before his death. The client, a war-time veteran, sought assistance from the clinic in obtaining financial benefits from the VA. These benefits were to be used to pay the veteran’s nursing home bills. Though we determined that he was likely eligible for VA assistance, he died before receiving any such assistance.

Upon receiving the sad news, I responded to my client’s daughter, hopefully conveying my condolences and possible next steps. At the conclusion of our email conversation, the daughter told me that the clinic had been a lifeline for her. Though I was unable to help her father in a concrete way, I am glad the clinic provided some comfort, support, and assistance to our client and his daughter.

As an elder law clinic, we seek to provide legal assistance to seniors in our community. Sometimes, circumstances beyond our control render us unable to achieve our clients’ legal goals. However, I think the clinic may still provide a valuable service if we serve as a lifeline and support system for our clients and their families. This experience has taught me the important non-legal assistance an attorney should give a client. I am grateful to my client and this clinic for teaching me this lesson.

 

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