I should start off by saying clearly that I am neither a doctor nor a trained medical professional. I’m an estate planning and elder law attorney with a background in science and an interest in reading about dementia. That being said, I also learn daily from my elder clients regarding their own lives, the signs of mental decline as they experience it, and their personal observations about the status of their spouse or other loved ones.

As sad as it may be, it’s all too often that people have not done the proper legal planning in advance of the dementia reaching a level where the individual can no longer sign any legal documents expressing their wishes. The issues then come to the surface. Who do they want to handle their affairs? How do they want their assets handled while they’re still living? How do they want their assets distributed after their death?

How is it that so many families find themselves in the position of having an elder with dementia, and not having the right plan put in place? I often hear that the elder was “coping” okay, and nobody wanted to have the difficult conversation that “maybe it’s time we do something.” Many times, a person will notice signs of early dementia in themselves or their spouse or parent, and then take action. At other times, people hide from the reality and hope it will go away.

I have had many cases where one spouse, or an adult child, comes to me and says that their spouse or parent was “doing okay” so nobody was too worried, and then they suddenly took a rapid and dramatic decline into severe dementia. It happens.

None of us know how dementia will affect a given individual, or what the timeline will be between noticing the first signs and reaching a point where the person refuses to sign any documents or simply does not have the mental capacity to sign. Don’t let this happen to you or a close friend or loved one. Be proactive and do some advance planning to protect the individual and the family.

 

 

People frequently bring me their existing Wills, Trusts, and Durable Power of Attorney documents for me to review and make sure that the documents will serve the intended purpose when the person needs to rely upon those documents. But, in many cases, the documents simply won’t meet the needs or desires of the person who signed them.

A local man died recently and two of his children came to see me with his Will that said the house went to the two of them, and nothing to the third child because, “Dad knew she was evil.” Really? I questioned whether the court would accept the Will that they showed me because it didn’t meet the California requirements for a valid Will. The Will had only one squiggled signature of a witness without the person’s printed name or address. There’s no way to validate who that witness was, but the two of them kept repeating that it didn’t matter because the Will was notarized. Well, in California we don’t notarize Wills. Valid Wills in California require the signatures of two witnesses that can be validated. Will the court ever accept that Will? Not likely. How many thousands of dollars will the three adult children spend fighting over it in court?

In another recent case, I had a brother and sister come to me shortly after their mother’s death, and they presented me with her Trust and four amendments to the Trust. Their mother had just died a week earlier at 99 years old, and they wanted to move ahead with the administration of the Trust. They seemed very knowledgeable about the contents of the Trust and informed me that, “Mom’s biological children get 60%, and her step-kids get 40%.” Really? That’s what it said in the second and third amendments, but the fourth amendment dropped that special language and also omitted a gift of $50,000 to the mother’s closest friend. The son and daughter were stunned. The daughter had been present when Mom signed the fourth amendment with her attorney the year before, but apparently the attorney forgot to carry through on Mom’s longstanding wish, and nobody took the time to read the one short paragraph that dropped Mom’s wishes that had been consistent for 10 or 15 years prior to signing the fourth amendment.

The end result of the attorney’s error on Mom’s fourth amendment was that her son and daughter would now each get $260,000 less than Mom had long intended. Although the key paragraph was only three or four sentences long, and it was intended that the wording be the same as on the prior two amendments, nobody took the time to read that paragraph and understand the meaning. Expensive mistake.

Another common problem that I see is when a surviving spouse comes to see me 5 or 10 years after the first spouse died, and they’re shocked to find out that they don’t have full control over all of the couple’s assets. They signed the documents years ago and never fully understood the documents they had signed.

Don’t let this happen in your family. First, make sure that you have the proper legal documents in place, and that each document is valid. Second, make sure that you understand what your documents say, and that the documents accurately reflect your wishes. Don’t leave it until it’s too late. Get your legal documents in order now.

 

As an attorney who practices elder law and estate planning, I frequently see people who have waited so long to act that they have lost opportunities to get things done right. Many times the ability to preserve the full amount of assets has been lost, sometimes assets have been lost due to elder financial abuse and scams, and sometimes laws have changed which block opportunities that existed earlier. In the worst cases, the elder is unable to sign any documents at all due to a major stroke or dementia.

What prompts people to suddenly act in a rush? Sometimes it’s the death of someone near to them. I once had a client who desperately needed to get his affairs in order within three days. Why? He was leaving on a trip. I still didn’t understand. Well, his father had died. Was that the motivation? The client admitted that his father had died ten years ago and he had really been trying to come in and get everything done ever since then, but the years rolled by and then suddenly his younger brother died the week before he came to see me. That scared him into action.

Getting the proper documents in place is part one. Part two is making sure that the documents are up to date for what you need. Are your documents up to date? Does your living trust consider the new tax laws?

The durable power of attorney is generally considered to be one of the most powerful documents in your estate planning package, but I frequently see powers of attorney written years ago that specifically prohibit us from doing what we need to do now to protect the elder and their assets. Needs change with time, and many documents that work for younger people aren’t what should be used for seniors.

Take care of yourself and your family. Make sure you have the right legal documents in place.

Don’t delay!

 

 

Do you have a Will or do you have a Trust? Which is better for you? Do you have your original documents, or are they stored at the attorney’s office?

A local man died few years ago and he owned 16 pieces of property here in South Valley. But he had no Trust. Why? His attorney had prepared a Will for him, but why wasn’t there a Trust? The man’s estate likely paid more than $150,000 in probate fees that largely could have been avoided if he had a Trust. His attorney collected a huge fee that could also have been avoided. That money could have stayed in the family.

If you have a Will, the assets pass through probate. The process is slow, costly, and is open to the public. Having your property held in a Trust avoids probate, so the assets pass to your heirs faster and at a lower cost. Having a proper Trust will also allow your family to avoid having to open a Conservatorship for you if you are incapacitated and unable to handle your own affairs.

The main reasons why people don’t have Trusts are 1) procrastination, and 2) lack of knowledge. A good Trust will protect you during your own life, and provide protection for your heirs as well.

A client came to me last week with two of her daughters, and she wanted a Trust. She had tried to get the Trust done about 10 or 12 years ago, but despite several requests for a Trust, her attorney refused to prepare a Trust and told her that she would be fine with only a Will. Really? She owns two pieces of choice real estate in our area, and they’re valued at close to $2 million. A Will has no legal effect until the moment of death, so the Will would not have provided any protection for her during her lifetime, and then her two properties would have had to pass though probate following her death. The approximate probate fees if she were to die today would be about $66,000.

The woman and her daughters apologized for not bringing the original Will for me to review, but that was because the attorney had kept the original Will. Really? That’s an old attorney trick so that the family has to contact the attorney after the person dies, and then the attorney has the opportunity to make a lot more money from the estate of the deceased person. Don’t let that happen to you or your family. Keep the signed, original documents in your possession. If you’re afraid that you might lose them, keep them in a safe deposit box at the bank and give copies to some trusted people. Your attorney should keep copies, but you should hold the originals.

In the case of the woman who came in with two of her daughters, they were hoping that they would never need to present that original of the old Will, because they didn’t want to have to return to that attorney’s office. We didn’t need the old Will to establish a new Trust and pour-over Will, along with the Durable Power of Attorney and Advance Healthcare Directives, so the family was fine to move ahead and get things done as the mother wanted.

If you have real estate, or if you have assets worth more than $150,000, you should have a good Trust and the other documents that go along with it… especially the Durable Power of Attorney and the Advance Healthcare Directives. The correct “package” of legal documents will allow the trusted people you appoint to make the decisions to legally care for you, and it will allow your estate to pass your assets to your heirs with fewer problems. . . . Get it done!

 

 

 

 

 

What is a Power of Attorney? Sometimes it’s called a Financial Power of Attorney. It’s a document that gives authority to your named Agent to act for you in various situations. That may be paying your bills, accessing your bank accounts, closing your accounts, or even selling your residence. Thorough power of attorney documents give considerable authority to your appointed Agent, so you need to make sure that you have named a trusted person to act as your Agent.

Have you named a successor Agent? Maybe you have named your spouse or your oldest child as your Agent, but what if that person cannot act for you. Have you named an alternate? Is your power of attorney a “durable” power of attorney? If it is durable, this means that your Agent can act for you even if you are incapacitated. Generally, you want the document to be durable, and you want to appoint an alternate Agent so that you are better protected.

Is your power of attorney “springing,” “conditional,” or “immediate”? Both springing and conditional powers of attorney have been outlawed in some states due to the problems that they can create, but I often see them being used by attorneys who are not familiar with those issues. If a person is being scammed or making bad decisions, and they have a springing power of attorney that requires one or two doctors to state that the person cannot handle their own affairs, the big question is whether doctors will be willing to sign such statements, or whether the person can avoid going to the doctor so that there is no diagnosis of dementia, or whether they can fool the doctor during a five minute visit so that the doctor thinks the person is still okay to handle their own affairs.

Is your power of attorney elder law friendly? An example of the importance of this is whether your Agent can get you onto government benefits such as Medi-Cal if you need assistance at home or you want Medi-Cal to pay for your nursing home costs. It’s not just a matter of the application, but also allowing transfers and reclassification of assets for eligibility for those benefits and protection against the state placing a lien on those assets. These are critical issues for many elders, and the lack of a power of attorney, or having the wrong power of attorney, can prohibit your family from taking the necessary actions to protect you and your loved ones.

I have seen many individuals and families face financial hardship because a proper power of attorney was not in place. Getting a good power of attorney is not difficult. Not having the right one in place when you need it can be devastating.

Every adult should have the right kind of power of attorney in place and have the best Agent and successor Agent available to take action to help them. It’s one of the most important documents that a person can have. If you don’t have a durable power of attorney in place, get one. If you have one, make sure that it is detailed enough to allow your Agent to take the necessary actions that may be needed to protect you, to care for you, and to protect your assets.

 

 

California Welfare and Institutions Code 15610.07 WIC — Elder abuse.

(a) “Abuse of an elder or a dependent adult” means any of

the following:

(1) Physical abuse, neglect, abandonment, isolation, abduction, or

other treatment with resulting physical harm or pain or mental suffering.

(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

(3) Financial abuse, as defined in Section 15610.30.

 

I had originally planned to write something different for this article, but this morning I received a call from an attorney friend who was trying to help his aunt. The aunt is in her late 90s and has had advanced Alzheimer’s for a number of years. She doesn’t live locally, but my friend knows that she has enough income to pay for her apartment rent, utilities, and food. It turns out that the aunt had to be hospitalized because a grandson was physically beating her. The hospital reported the abuse and it became public. Several family members had been living with the aunt because she was the “golden goose” with her income, and they could live there for free and use her money to buy food. Other family members didn’t report the known abuse because they didn’t want to lose their golden goose. The physical abuse is certainly elder abuse, and the case likely involves financial abuse as well because the aunt’s income was being used to support several other people to her detriment.

The first step in these cases is generally to call the Adult Protective Services (APS) office in the county where the elder resides. They have the resources and trained personnel to handle these cases. Our tax dollars support this, and the people are there to protect our elders. Some people are mandatory reporters, but anyone can report what they suspect is elder abuse. The person reporting what they suspect as elder abuse can provide their name and contact information, or they can simply remain anonymous. The people at APS are there to try and protect the elder. If you suspect that an elder is being abused, whether it’s physical abuse or financial abuse, you should report it.

Elder financial abuse is categorized into criminal elder financial abuse and civil elder financial abuse. Theft, embezzlement, forgery, and fraud are criminal elder financial abuse. The civil elder financial abuse involves taking the elder’s personal or real property for wrongful use or with intent to defraud, or both. It also includes assisting in the taking, secreting, appropriating, obtaining, or retaining the assets of an elder for wrongful use or with intent to defraud, or both, and it also encompasses acts of undue influence, which is defined as excessive persuasion that results in inequity.

I had a recent case where a son moved into his father’s big house and hadn’t paid rent in two years, so the 94 year old father, who was living in a very old, one bedroom house together with his caregiver friend, was deprived of the rental income he needed to pay for food and medicine. The son was supposed to pay his father’s utilities, but the gas and electricity had been cut off once, the water department had threatened to cut off his water, and the son had refused to pay for his father’s land line telephone, so it was cut off too. The son was taking his father’s income and only giving the father $300 a month to live on, which was not even enough to provide food for the father and his caregiver.

Don’t let these things happen to someone you know. You should report elder abuse if you suspect it, and you can report it anonymously if you wish. The California Bar publishes a good informational pamphlet that can be found at the site below.

https://www.calbar.ca.gov/Public/Pamphlets/ElderAbuse.aspx

First off, don’t be confused about the programs. We have Medicare, Medicaid, and Medi-Cal. Medicare is a federal program that serves individuals who are citizens and age 65 or older. Medicaid is a federal program administered through the states, so each state can make some of their own rules. In California, Medicaid goes by the name Medi-Cal, and that leads to some confusion.

Medi-Cal serves people of all ages if they qualify, but the focus of this article is on using Medi-Cal to pay for the long term care needs of seniors.

Two types of care are available through Medi-Cal. One type is In Home Supportive Services, also known as IHSS. This is available for qualified people over 65 years of age, or people who are disabled or blind. IHSS is provided to qualified people to assist in paying for services to enable them to stay at home. This is an alternative to out-of-home care such as nursing homes or board and care homes. If a person is approved for Medi-Cal, the county then evaluates the person to see how much care is needed to keep them at home. This is usually a certain number of hours of assistance that will be provided by Medi-Cal each day.

The other Medi-Cal program that is frequently used by seniors is the program that pays for long term care in a skilled nursing facility. Nursing home costs in our area run about $11,500 per month, so having this cost covered by Medi-Cal can provide a tremendous benefit to seniors and their families.

If a person enters a nursing home as a resident, the average length of stay, nationally, is 30 months. Many people think that Medicare will cover the nursing home expense, but that’s not true. Medicare will cover a stay of up to 100 days, but in most cases the Medicare coverage ends well before the 100 days are up. When Medicare coverage ends, the family must use their private funds or rely on Medi-Cal to pay for the senior’s care.

If the senior stays at the nursing facility for an extended period, the senior typically is on Medi-Cal, but only after they have depleted their assets. People refer to this depletion of assets as “spend down” or “spending down the senior’s assets.” Although this method is frequently used in other states, or the family uses this method through lack of knowledge about alternatives, this method is NOT used in California by knowledgeable elder law attorneys who are trying to preserve the senior’s assets. California law permits us to use other methods which result in preserving the assets of the senior.

I have had people say to me, “we spent over $500,000 of my mother’s assets before someone told us to go see a good elder law attorney.” Or, they say something like, “we’ve been paying for Dad’s nursing home costs for five years now, and he’s almost out of money.”

Don’t let this happen to your family. California Medi-Cal laws allow for advance planning to preserve the assets for the benefit of the senior, a spouse, and other heirs. Even if you don’t need Medi-Cal planning for yourself or a loved one now, make sure that you have the proper legal documents in place so that the right decisions can be made in the future. Don’t let the terms of a poorly drafted power of attorney or trust document prohibit your agent or trustee from taking the actions that you would have wanted them to take to preserve your assets for your family or your preferred charity.

 

 

If you’re eligible for Social Security, you probably know it. If you’re eligible for Medicare, you probably know it. But what about Medi-Cal? How will you pay for the costs of nursing home expenses? Could you be eligible to have Medi-Cal pay those costs? Have you planned ahead to protect your family’s assets?

One of the greatest failures I see as an Elder Law Attorney and Medi-Cal Planning Attorney is the general lack of awareness of what can be done with proper planning. I have had more than one family tell me the sad story that, “we paid over $500,000 for our mother’s nursing home costs before someone told us to go see an elder law attorney.” Wow! That’s a lot of after-tax money that the family didn’t have to spend.

Why does this continue to happen over and over again? People simply don’t know that planning techniques are available if you work with a knowledgeable elder law attorney. A Federal law approved in 2005 changed the eligibility rules, but California hasn’t adopted the new law yet. Yes, the other 49 states have the new rules, but not California. Our rules regarding Medi-Cal eligibility for covering nursing home costs are very different from the other states.

The average length of stay in a nursing home, nationally, is 30 months. If you go to a nursing home, that’s the average length of stay. That’s 2.5 years. In Santa Clara County, the cost of staying in a nursing home is between $11,000 and $12,000 each month. Can you afford that? How will it affect your spouse and family?

I’ve had people tell me that it doesn’t make sense to plan because the people who go to nursing homes die within two months. Really? That’s not true at all. Talk to people who have had a loved one there. Some people are residents in a skilled nursing home for 2 years, 5 years, 10 years, and even longer. The management at one nursing home told me that one resident had been there for over 20 years!

70% of individuals are impoverished within one year of entering the nursing home. 50% of all couples are impoverished within one year of one spouse entering the nursing home. It’s expensive, but that’s the reality of the situation. What can be done to protect your assets and establish some level financial security for the ill person, their spouse, or their family?

Federal law permits Medi-Cal planning, and people who plan ahead can protect their assets for their families. What about the families who think that the parents’ home will go to the kids when both parents die, but then they later find out that the home must be sold to satisfy the deceased person’s debt to the State of California? This happens because people don’t understand the laws and the complicated Medi-Cal rules. Why does this happen? Two reasons: (1) Lack of knowledge as to what can be done to protect the family’s assets, and (2) not having the proper legal documents put in place by a knowledgeable Elder Law Attorney who specializes in the financial side of Medi-Cal Planning and Eligibility for clients.

Lack of proper planning can cost a family hundreds of thousands of dollars. Do-it-yourself options and getting advice from someone other than a qualified elder law attorney can produce devastating results. Unknowledgeable people frequently quote the law from other states, but remember that California law is different from all of the other states.

If you want to protect the elder’s assets, talk with a qualified Elder Law Attorney. I regularly see a lack of planning or planning that won’t work because it wasn’t done right. Don’t let that happen to your family.

 

 

 

My client told me that her 91 year old sister had never been married and never even had a boyfriend, but she met a nice 88 year old gentleman and now she was getting married to him after knowing him for a very short period of time. True love? Scam?

We frequently hear of someone convincing an elder to change their will or trust for the other person’s benefit, or even using what the law describes as undue influence, but what about a marriage? There have been a couple of high profile cases of this in our area in the last few years — both involved men who had declining mental capacity and the court later determined that they had been taken advantage of by women who married them for their assets.

In one case, the stepdaughter divorced her husband and began wearing her deceased mother’s clothing and perfume to convince her stepfather that she was his loving wife who had returned from the grave. The stepdaughter then took him to Reno and married him! When the details came to light following the man’s death, the court determined that the man perhaps thought he was remarrying his wife who had already died, but he certainly didn’t know that he was marrying his stepdaughter.

The other case involved a man from Norway who lived in San Jose and had no wife or children, but he had $2 million and he was leaving it all to his relatives in Norway. When he died and the family went searching for his estate, it turned out that his estate planning attorney had married him and she was claiming that all of the money had been left to her! He had gone to her for help and she was now claiming that as his wife, everything was hers. However, they had never told anyone about the marriage and they had never lived together, so the court determined that the gentleman wasn’t even aware that he got married. It was the court’s opinion that the man had been scammed and the court directed that his assets were to go to his heirs in Norway. The attorney appealed and continued to claim that she was his legitimate wife, but she lost again on appeal and the heirs in Norway eventually received their rightful inheritance.

These are interesting stories that actually happened in our area.

Marrying for money is a growing scam and it’s a form of elder abuse that is spreading rapidly. Is it abuse, or is it love? Sometimes it’s true love, and sometimes it’s not. How do you tell? There is no federal law on marriage as a form of elder abuse, and state laws vary from state to state. The mental capacity required for marriage is extremely low, so how do you prevent an elder from being scammed? It’s difficult. If the elder is isolated and not in regular contact with family and friends, people other than the scammer aren’t aware of what’s happening. That’s the problem. It’s hard to correct when many months or years have already passed since the marriage occurred.

Talk to your parents and loved ones if you’re concerned. Find out if they are financially “assisting” someone else or if a new “friend” has suddenly entered their life. You should also look for signs of stress or loneliness, especially after the death of a loved one.

We often use special irrevocable Medi-Cal trusts to protect an elder’s assets in the event that they need to go to a nursing home, but these irrevocable trusts have the added advantage of moving the assets beyond the reach of the elder. This generally prevents most of the elder abuse that occurs in situations when the elder is coerced into making changes in the distribution of their assets.

Call our office if we can assist you or a loved one create an estate plan to better protect assets from elder abuse.

First, a disclaimer and a note: I have many clients who are happy in assisted living, and many of the assisted living facilities in our area are fantastic and wonderful and ethical. I am not passing judgement upon any particular facility, but just suggesting that people approach the issue with more knowledge and their eyes open.

Point One – How do you find a good assisted living facility for yourself or your parent? Unfortunately, the need sometimes arises with little warning, and the family hasn’t had the opportunity to look around and check out the different facilities and evaluate them.

Alas, the angels are here to help. Really? . . . My client had to be moved in a rush, and his son was in charge of finding a facility for him. The son advised me that he had been referred to a social worker who was helping him to find the “best” facility for his father at no charge to the family for the social worker’s time and service. Really? I asked who the social worker worked for and I suggested that the son find out how the “social worker” gets compensated.

The son called me the following day in total dismay. He asked the questions I told him to ask, and he found out that the very polite “social worker” was not a social worker at all, but an independent agent who gets paid a commission to place seniors at assisted living facilities. These people essentially act like real estate agents who handle rental properties for a commission, but they are not regulated and they are not licensed by the Department of Real Estate.

How does the family know that the suggested facility is really the right fit for mom or dad, or it’s just the one that pays the agent the highest commission? In most cases, you’ll never know. You need to check out the facilities and develop your own opinion.

Point Two – What is bait and switch? Most of us have an idea of how this works, and many of us have been harmed by this sales tactic before, but has an assisted living facility ever done this? Could such nice facilities, which purport to love elders, really use this tactic to increase their profits? Remember, these facilities are “for profit” ventures.

Clients have told me of placing their parent in an assisted living facility at $4,000 a month after the senior was evaluated by the facility, and then suddenly the charge was bumped to $6,000 and then $8,000 a month because the elder “needed a lot more care than was apparent at the initial evaluation.” Wow…… Really? How could this happen?

You have to ask yourself, is this real? Why didn’t they tell us this in advance? Mom seems the same to us as she was a year ago.

Once an elder is relocated to an assisted living facility, the family is reluctant to move them again. Sometimes the elder had difficulty in adjusting and they don’t want the elder to have to go through that process all over again. The facilities know this too and warn families against moving the elder. The result is that the facility gets more money from the family if the elder isn’t moved.

What Can You Do? – The elder and their family members need to be aware of how things work and be better informed consumers. Follow the money and understand the incentives that people have when they’re giving you advice.