Category Archives: Hospice Care
The most important thing that you can do in planning for future contingencies is to act now. The future may hold limited resources or health problems for you and either one of these may prevent you from taking care of the things that you can easily achieve today.
In Part 1 of this series, I showed how making a good Long-Term Care Plan is an urgent and necessary step in preparing for the future. In Part 2, I outlined the three most essential documents found in that plan, namely, a General Power of Attorney, Advance Medical Directive with a Long-Term Care Directive and a Lifestyle Care Plan. In the last installment, Part 3, I discussed using long-term care insurance as part of a Long-Term Care Plan. As we saw in Part 3, Virginia’s Long-Term Care Insurance Partnership Program offers government-endorsed “Medicaid Asset Protection” to consumers who buy long-term care insurance.
Part 4 will now discuss how our Living Trust PlusTM Asset Protection Trust can protect you from probate (as does a Revocable Living Trust) PLUS protect you from the expenses of long-term care.
You Can’t Afford to Ignore Long-Term Care Expenses
Whether you’re rich, poor, or somewhere in between, you cannot afford to ignore the potentially devastating costs of nursing home care and other types of long-term care. Nursing homes are the most likely and one of the most expensive creditors that most Americans are likely to face in their lifetimes. Remember the following statistics that I cited in Part 1 of this series:
- About 70% of Americans who live to age 65 will need long-term care at some time in their lives, over 40 percent in a nursing home.
- As of 2008, the national average cost of a private room in a nursing home was $212 per day or $77,380 per year.
- The average person age 65 today will need some long-term care services for three years. Women need care for longer (on average 3.7 years) than do men (on average 2.2 years). Twenty percent of them will need care for more than five years.
- Long-term care is not just needed by the elderly. A recent study found that 46 percent of group long-term care claimants were under the age of 65 at the time of disability.
Contrast the above long-term care statistics with statistics for automobile accident claims and homeowner’s insurance claims:
- Between 2005 and 2007, an average of only 7.2% of people per year filed an automobile insurance claim.
- Between 2002 and 2006, an average of only 6.15% of people per year filed a claim on their homeowner’s insurance.
Revocable Living Trusts Don’t Help
A revocable living trust is a wonderful tool to protect your assets from the expenses of probate, but it does not protect your assets from the expenses of long-term care while you’re alive. Because you have 100% unlimited access to the funds in a revocable living trust, so do your creditors, including nursing homes and State Medicaid programs.
Living Trust PlusTM: Protect Assets from Probate PLUS Lawsuits PLUS The Expenses of Long-Term Care
In response to this limitation of revocable living trusts, I have developed a unique solution – a special type of irrevocable trust called the Living Trust PlusTM that functions very similarly to a revocable living trust but protects your assets from the expenses and difficulties of probate PLUS lawsuits PLUS the expenses of long-term care while you’re alive, in addition to a multitude of other financial risks during your lifetime. The Living Trust PlusTM protects your assets from lawsuits, auto accidents, creditor attacks, medical expenses, and — most importantly for the 99% of Americans who are not among the ultra-wealthy — from the catastrophic expenses often incurred in connection with nursing home care. For most Americans, the Living Trust PlusTM is the preferable form of asset protection trust because, for purposes of Medicaid eligibility, this type of trust is the only type of self-settled asset protection trust that allows a settlor to retain an interest in the trust while also protecting the assets from being counted by state Medicaid agencies.
Even though the Living Trust PlusTM is “irrevocable,” it can still be terminated so long as all interested parties (typically you and all of your beneficiaries) agree to terminate it. Additionally, you remain in control of your assets because:
- you can be the trustee if desired;
- you retain the right to receive all of the trust income;
- you retain the right to live in and use your real estate;
- you retain the right to change trustees; and
- you retain the right to change beneficiaries.
The Living Trust PlusTM has no effect on your income or your income taxes.
If you’re a client or potential client who would like more information about the Living Trust PlusTM, please call us at 703-691-1888 to contact us for an appointment, visit the Living Trust PlusTM web site at http://www.livingtrustplus.com or click here to register for one of our upcoming Living Trust PlusTM informational seminars.
If you’re an attorney interested in more information about the Living Trust PlusTM or interested in the possibility of licensing the Living Trust PlusTM Asset Protection System, visit the Living Trust PlusTM web site at http://www.livingtrustplus.com and click on the link labeled “For Attorneys.”
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We work as a team so that there is always someone available to help you when you need it. All of the people who work in our office are committed to this goal. They are all caring and compassionate people, and they understand the problems that you and your family may be facing. To get to know our team, please click here.
“Long-Term Care” refers to the broad spectrum of medical and support services provided to persons who have lost some or all capacity to function on their own due to a chronic illness or disabling condition, and who are expected to need such services over a prolonged period of time. Long-term care can consist of care in the home by family members (assisted by voluntary or employed help), adult day health care, or care in assisted living facilities or nursing homes.
In Part 1 of this series I mentioned that 60% of us will need long-term care at some point in our lives. When this statistic is put in perspective with the relatively low likelihood of making an automobile or homeowner’s insurance claim, the risk that you or I will need long-term care at some point in the future is shocking. Unfortunately, the majority of Americans are either unaware of these statistics or refuse to plan for the often catastrophic costs of long-term care. Part 1 of this series outlined the necessity to create a good Long-Term Care Plan in addition to, or as part of, your Estate Plan; Part 2 will now discuss the three most essential documents found in a good Long-Term Care Plan, as well as two additional documents that are often also part of a Long-Term Care Plan.
General Power of Attorney
A General Durable Power of Attorney (POA) containing Asset Protection Powers is the first essential document. Not all POA’s are created equal; it is crucial that this document be prepared by a knowledgeable and experienced Elder Law Attorney. One way to ensure the qualifications of your attorney is to look for one who is Certified as an Elder Law Attorney by the National Elder Law Foundation, the only organization accredited by the American Bar Association to certify lawyers in the specialty area of Elder Law. For a list of Certified Elder Law Attorneys, please visit http://www.nelf.org/findcela.asp.
A POA (always “durable” when used in connection with estate planning and long-term care planning) authorizes your “Agent,” sometimes called an “Attorney in Fact,” to act on your behalf and sign your name to legal and financial documents. It is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs. Asset Protection Powers written into the POA are essential in order for your Agent to protect your assets from the often-catastrophic expenses of long-term care. Attorneys who are not experienced Elder Law Attorneys often fail to put these essential Asset Protection Powers into the POA.
A properly-drafted POA is designed to avoid the need to go through a court-supervised conservatorship proceeding, which is a time consuming, expensive, and publicly embarrassing process whereby someone goes to court to have you declared incompetent and to be appointed as your Conservator. The Conservatorship process is often referred to as a type of “living probate” because the Conservator is subject to all the rules of the probate court, including the onerous requirement of filing annual accountings with the Court. State laws vary regarding the use and acceptance of a power of attorney.
Advance Medical Directive
The second essential document in a good Long-Term Care Plan is an Advance Medical Directive (AMD) containing a Long-Term Care Directive. As with General Powers of Attorney, every lawyer drafts AMDs differently, and most attorneys do not include a Long-Term Care Directive within the AMD. Therefore, it is again in your best interest to have your AMD written by an attorney who specializes in long-term care planning, such as a Certified Elder Law Attorney.
An AMD (also called a Medical Power of Attorney or a Health Care Power of Attorney) authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. This document includes the type of provisions that used to be in what was commonly called a “Living Will,” allowing you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life in the event of a terminal illness or injury. In the AMD you will also appoint a “Medical Agent” and give that person the power to consent to medical and health care decisions on your behalf with regard to providing, withholding, or withdrawing a specific medical treatment or course of treatment when you are incapable of making or communicating an informed decision on your own behalf. A comprehensive AMD will also allow you to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements.
A properly-drafted AMD is designed to avoid the need to go through a court-supervised guardianship proceeding, which is a time consuming, expensive, and publicly embarrassing process whereby someone goes to court to have you declared incompetent and to be appointed as your Guardian, typically at the same time they are requesting appointment as your Conservator.
Long-Term Care Directive
Most importantly for your Long-Term Care Plan, your AMD should include a Long-Term Care Directive (or this could be drafted as a separate document), which will allow you to make your desires known in the event you need long-term care in the future. For instance, do you want to remain at home and receive home-based care as long as possible, regardless of cost, even if it drastically reduces or entirely depletes your estate? Or would you prefer to remain at home and receive home-based care only if it doesn’t drastically reduce or entirely deplete your estate? If nursing home care is absolutely required, would you like to protect as much of your assets as can be legally protected so that you can qualify earlier for publicly-funded Medicaid benefits? If so, do you prefer that the protected assets be used to enhance your quality of care, or to provide an inheritance for the beneficiaries of your estate?
In order to be easily accessible when needed, your AMD should be registered with an electronic archive service that can immediately fax the document to any desired destination. Some Elder Law Attorneys, including our firm, provide such registrations to clients at no charge.
Lifestyle Care Plan
The third essential document that is found in a good Long-Term Care Plan is a document called a Lifestyle Care Plan, also known as an Advance Care Plan. The Lifestyle Care Plan is a document that is created by special software that gathers, organizes, stores and disseminates information provided by you in an interview, in order to guide those who you will depend or for future care. The Lifestyle Care Plan identifies your specific needs, desires, habits and preferences and incorporates all of this information into a document that your future caregiver can use to provide you with the best possible long-term care.
As an example, Alice wrote in her Lifestyle Care Plan that if Alzheimer’s disease or some other type of dementia inhibited her mental abilities to communicate or recognize her surroundings, she wished to be in a respectable facility and only asked that she be visited and brought chocolates. To her children this request seemed silly at the time, but when her mental capacities did diminish, the instructions were there. No one had to wonder if they should try to take care of Alice at home and how they would do it. Without guilt or question they placed her in a respectable facility that took care of her needs. All they had to do was make loving visits, and of course they brought chocolates.
Because of the importance of the Lifestyle Care Plan, the Farr Law Firm provides one to all of our clients as part our comprehensive Long-Term Care Planning services. To learn more about the benefits of having an Advance Care Plan, please click here or visit our Web site at: www.farrlawfirm.com/advance-care-plan.htm
A good Long-Term Care Plan will always include the three documents mentioned above, and will typically also include a Living Trust — either a Revocable Living Trust (RLT) or the Living Trust Plus™ (LTP).
An RLT generally provides for the creator of the trust to have full use of the trust income and principal for life. On the death of the creator, the assets may continue to be held in trust (or may be distributed) for the benefit of the named beneficiaries, such as the grantor’s children. Although the most important benefit of the RLT is to avoid probate, a well-drafted RLT also can help protect from incapacity and can therefore be an important part of a Long-Term Care Plan. Similar to a General Power of Attorney, an RLT can provide uninterrupted management of your assets by your trustee if you become incapacitated, sparing you and your family from having to go through the expense and complexities of a court-appointed conservatorship. It is important to note that an RLT does not protect your assets from the expenses of long-term care. On the contrary, the assets in an RLT must be spent, if necessary, in providing long-term care, even if that means spending down all of the assets in the RLT to provide such care. For more information on RLTs, please click here or visit our Web site at: www.farrlawfirm.com/revocable.html
The Living Trust Plus™ is a living trust that is designed to protect your assets from probate PLUS lawsuits, PLUS nursing home expenses. In other words, the LTP protects your assets from the complications and hassles of probate and from other financial risks, including the threat of lawsuits, auto accidents, creditor attacks, extended hospitalization, and — most importantly – the catastrophic expenses associated with nursing home care. Part 4 of this series will explore the LTP in detail.
A good Long-Term Care Plan will always include a General Power of Attorney, Advance Medical Directive, and Advance Care Plan, and will typically also include a Living Trust — either a Revocable Living Trust or the Living Trust Plus™. However, as mentioned in Part 1, these essential legal documents are only part of the requirements for a good Long-Term Care Plan. The other important component is a plan for how to pay for long-term care. The next installment in this series will discuss protecting your assets by purchasing long-term care insurance.
The Farr Law Firm specializes in long-term care planning and we would be happy to assist you in your preparations. Please visit us at www.VirginiaElderLaw.com or call us at 703-691-1888.
It is natural that health care providers such as doctors, pharmacists and nurses will have the same attitude towards aging as other Americans. Without proper geriatric care training, these people can fall into the same trap of treating the elderly differently from younger people. According to the Alliance for Aging Research,
“In recent years evidence has been mounting to suggest that, at all levels in the delivery of healthcare, there is a prevailing bias – ageism – that is at odds with the best interests of older people. This prejudice against the old in American healthcare is evidenced by scores of recent clinical studies, surveys and medical commentaries, many of which are referenced here. In this report, we outline five key dimensions of the ageist bias in which U.S. healthcare fails older Americans:
- Healthcare professionals do not receive enough training in geriatrics to properly care for many older patients.
- Older patients are less likely than younger people to receive preventive care.
- Older patients are less likely to be tested or screened for diseases and other health problems.
- Proven medical interventions for older patients are often ignored, leading to inappropriate or incomplete treatment.
- Older people are consistently excluded from clinical trials, even though they are the largest users of approved drugs.”
A fictional story, often used in the training of geriatric physicians, goes this way:
“A 90 year old man meets with his doctor and complains about pain in his right knee. The doctor tells him, “Well Henry, what do you expect? You’re 90 years old.”
Henry replies, “But doctor my left knee is the same age as my right knee, there’s no pain and it feels just fine!”
Many in the health-care profession consider old age to be a disease itself. Any medical problems are inappropriately attributed to old age as if it were a medical condition. And since there is no cure for old age, appropriate tests and treatment are never performed. Thus, medical problems that may not be related to age and may just as frequently occur in younger people are often not treated.
A 2003 study of caregivers has proven that the off-repeated adage “stress can kill you” is true. The focus of the investigation was the effect the stress of caregiving had on caregivers.
A team of researchers at Ohio State University Medical Center has found a chemical marker in the blood that shows a significant increase under chronic stress and is linked to an impaired immune system response in aging adults. The team, led by Dr. Janice Kiecolt-Glaser, reports in the June 30, 2003 issue of Proceedings of the National Academy of Sciences on a 6-year study of elderly people caring for spouses with Alzheimer’s Disease. With the caregivers, the team found a four-fold increase in an immune system protein — interleukin 6 (IL-6) — as compared to a control group of non-caregivers. Only the stress of caregiving correlated to the marked increase of IL-6 in the caregiver group. All other factors, including age, were not significant to the outcome. Even the younger caregivers saw an increase in IL-6.
The study also found that the caregivers had a 63% higher death rate than the control group. About 70% of the caregivers died before the end of the study and had to be replaced by new subjects. Another surprising result was that high levels of IL-6 continued even three years after the caregiving stopped. Dr. Glaser proposes that prolonged stress may have triggered a permanent abnormality of the immune system.
The problem is if this response is initiated repeatedly over a long period; it can have a dangerous effect on the body. This repetitive initiation of the stress response is common among caregivers — especially those caring for loved ones with dementia. Providing supervision or physical assistance many hours a week and over a period of years turns out to be extremely stressful. This type of stress is often unrelenting, occurring day after day and week after week. And the long-term effects of this stress are more pronounced in middle-aged and older people who are precisely the group most likely offering long-term care to loved ones.
If you are a caregiver, please give us a call. Through a properly-designed Life Care Plan for your loved one, the Farr Law Firm can help you minimize or eliminate much of your stress.
It is unfortunate that many people who die in a hospital emergency room or who receive heroic treatments to prolong life in a hospital or nursing home may have had the alternative of dying at home in familiar surroundings, with family or other loved ones at their side.
When someone is dying but there really is no hope for recovery, the family often calls 911 and starts a process which can result in great stress and great emotional discomfort. The loved one who is dying ends up in a hospital or nursing home in a strange environment, frightened and confused and tied to tubes and monitoring devices. This is not the ideal way in which to spend one’s last hours on earth.
Attending to a dying loved one in the peace and quiet of the home with caring children and grandchildren surrounding the bed can be a meaningful and spiritual experience for all involved. Hospice can allow this to happen. Memories of a loved one passing in peace can provide great comfort for family members in years to come.
When there is no longer hope for prolonging life, especially when this decision is made months in advance, hospice is a better alternative to other medical intervention.
Hospice is a form of medically supportive care for patients who are terminally ill. It allows for compassion and dignity in the process of dying. A commonly used definition for terminally ill patients is, “patients who have a progressive, incurable illness that will end in death despite good treatment, and who are sick enough that you would not be surprised if they died within six months.”
Hospice care is a valuable service and is generally underused except for terminal cancer patients. Hospice involves a team approach using the following providers:
-The patient’ s personal physician;
-Hospice physician (or medical director);
-Home health aides;
-Clergy or other counselors;
-Trained volunteers; and
-Speech, physical, and occupational therapists, if needed.
The purpose of hospice is the following:
-Managing the patient’s pain and symptoms;
-Assisting the patient and the patient’s family with the emotional, psychosocial, and spiritual aspects of dying;
-Providing needed comfort and palliative medications, medical supplies, and equipment;
-Coaching the family on how to care for the patient;
-Delivering special services such as speech and physical therapy when needed;
-Making short-term inpatient care available when pain or symptoms become too difficult to manage at home, or the caregiver needs respite time; and
-Providing bereavement care and counseling to surviving family and friends.
A person can receive hospice from Medicare if he or she is:
-eligible for Medicare Part A (Hospital Insurance), and
-the doctor and the hospice medical director certify that the person is terminally ill and probably has less than six months to live, and
-the person or a family member signs a statement choosing hospice care instead of routine Medicare covered benefits for the terminal illness, and
-care is received from a Medicare-approved hospice program.
A person may continue to receive regular Medicare benefits from his or her customary doctors for conditions not related to the hospice condition.
Most families wait too long to have their doctor prescribe hospice from Medicare. Many doctors and families don’t consider this care alternative for Alzheimer’s, degenerative old age, or other debilitating illnesses where a person is going downhill quickly, but they should. If you or a loved one is suffering from such an illness, please discuss the possibility of hospice care with your physician. You can also contact directly one of our area’s local hospice providers, such as Capital Hospice (www.capitalhospice.org ) or Odyssey Health Care (www.odsyhealth.com ).