William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Category: Uncategorized (page 1 of 5)

Prevailing Reason Why We Should Obtain a Health Care Directive

By Svitlana Makoviy, Elder & Disability Law Clinic Student, Fall 2018

When I was seven, my grandfather suffered a heart attack and was hospitalized. I vividly remember every moment of that day, because I was the one who made the 911 call. Grandpa took me to my piano lesson and as we returned home, I followed my routine of finishing school work, as he was making dinner. From the adjoining room, I heard a plate shatter on the floor. Rushing to the kitchen, I saw grandpa with one hand tightly pressed against his chest and with the other gesturing towards the telephone. Mortified, I grabbed the phone and dialed 911, following my mom’s clear instructions on what to do in case of an emergency.

My grandpa was a very strong-willed man. He knew precisely how he did not want to go – he was adamant about feeding tubes, life support, and anything of that nature. He resisted creating or signing a Power of Attorney or a Health Care Directive. He, along with his friends, distrusted the documents because of legal jargon, which they found confusing. Looking back and after learning how important and effective the documents are at protecting the individual’s interests, I truly wish he had created them when he still could.

Once we were at the hospital, my grandpa had a few brief moments of consciousness. As a result of his heart attack, he suffered additional complications, which required substantial medical intervention. Because he was too weak for surgery, largely attributable to his age and condition, the doctors kept him alive with medications and a breathing ventilator. My mom knew that if the doctors were unable to bring him back and he continued to slowly drift and remain in a comatose state, my grandpa would want to be let go. My mom conveyed my grandpa’s wishes to her sister, who disagreed.

My aunt remained firm on the idea that it was her and my mom’s duty, as children, to keep my grandpa alive for as long as they could. Hence, taking him off life-support would be the ultimate betrayal. My aunt lived in a different country and was only able to visit my grandpa once or twice a year. Looking back, perhaps she was not aware of his position on prolonged medical intervention. My aunt eventually conceded that it was time to let go.

We tend to be caught up in the moment. When the good times turn into great times, we may postpone planning for the future, as it seems so far away. A health care decision is a very personal one. It must be respected, hence transforming that decision into a binding, legal obligation is paramount to secure one’s wishes, and protect loved ones from having to make an impossible choice. Both, my mom and my aunt have been living with guilt because they executed what was meant to be his personal act. My grandpa was a wonderful man, who had absolutely no intention of placing his children in the position they were placed. He innocently did not account for it.

Held by the Bounds of the Law

By Rachel Csutoros, Elder & Disability Law Clinic Student, Fall 2018

Many people choose the to enter the legal profession to help people and further the public good. However, there are aspects of the profession that quickly destroy this admirable aspiration. I am learning this lesson during my semester in the Elder and Disability Law Clinic. This is my first experience in dealing with clients and their specific legal issues that impact their personal lives. During my first client meeting, I was overcome with the overwhelming urge to ensure my client that my partner and I would be able to help her achieve justice and assist her in all of her legal needs.

This young woman came to us with questions and concerns about the will that her grandmother left behind. Our client felt like her father had placed an undue burden on her grandmother to sign a will that passed everything in her estate over to him. Our client wanted to pursue a wrongful death action and possibly even legal action against her father for various claims of abuse and neglect. As she depicted all of the circumstances surrounding these issues with her father and grandmother, I had an overwhelming desire to reassure her that no matter what, I would pursue justice on her grandmother’s behalf. But in this case, the law was not on our client’s side.

In general, there is a low mental standard required to pass property by will. This enables most people to distribute their property the way they would like. The law is in favor of directing property in this way; it would prefer to not have to pass a will by intestacy (through the laws of the state). However, this presents a problem when contesting a will signed by the testator (the owner of the property). In the case we had before us, the will was drawn up by an attorney, witnessed by various individuals, and signed by the testator (in this case the grandmother). The elements for a proper will had been sufficiently met. Barring some uncontrivable evidence, the will could not be questioned.

My partner and I were stuck with the task of informing our client that there were no causes of action that she could successfully take. The chances were very likely that her father would prevail if she contested her grandmother’s will.

In dealing with this seemingly hopeless situation, I had to face the fact that I cannot help every client that comes into my office. In my legal practice, I will not be able to solve every person’s problems. The law limits the amount of aid I can give each individual. While this is a hard lesson to learn, I am thankful to be learning in a forgiving space where I can discuss the disappointments I find within the practice of law with my fellow classmates and my professors.

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

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