Stapleton Elder Law

When Caring for an Elderly Parent Becomes a Second Job

More than 45 million Americans take care of an elderly family member, usually an aging parent. This can have negative impact on their own family, from finances to strained relationships.

It only seems fair: your parents took care of you when you were young, and now they need your help. Aging parents often need adult children to handle medical care and finances, when they can no longer manage on their own. When the level of care spills over into the adult child’s own finances and impacts their careers, it can become a hardship.

MarketWatch’s article, “Read this before becoming your parents’ caregiver,” reports that, in many instances, the adult child caregiver is still able to maintain a full career and family life. However, in certain situations, the family member who’s assumed the role of a full-time caregiver must reduce his or her work hours or forego a promotion because of the time commitment. In the majority of situations, we see adult children answer the call of caregiving in a crisis when there’s an imminent need. A short-term assignment can be doable for a professional with his or her other family and personal responsibilities, but when the duties last longer, he or she will realize there isn’t enough time or resources to do it all.

A caregiver needs to take the actions necessary to help without putting his or her own family’s financial future at issue. When there are siblings and other family members involved, it is necessary to communicate realistic expectations of what areas of care are needed, responsibilities, time commitments and whether there will be any financial compensation.

A Personal Care Agreement can be a good guideline.  It will help to detail which individuals are responsible for various aspects of care, the amount of time required and any compensation. The biggest question that people have about this agreement, is how to get paid to be a family caregiver.

A Personal Care Agreement can give an adult child caregiver the peace of mind and security that he or she won’t suffer undue financial consequences, as well as provide clear details for other family members as to the expectations when assuming these important caregiving responsibilities.

This agreement can help avoid some of the misunderstandings that can occur when many siblings and loved ones are trying to help (or fail to pitch in). It also can protect a family member who is losing his or her own income and time to provide caregiving. This is because reduced hours or an exit from the workforce to care for a loved one, can have a major personal financial impact. In addition, the time for a personal and immediate family life with one’s own spouse and children can nearly evaporate with caregiving demands.

An Elder Law attorney can help create a Personal Care Agreement that will protect you from any accusations of financial elder abuse and clarify the responsibilities and role that you have taken on as the parent’s primary caregiver. This will also protect you from any charges that care payments were a way of hiding assets from Medicaid.  It is also suggested that you hold a family meeting, with the Elder Law attorney, if necessary, so that all family members understand the situation.

Reference: MarketWatch (February 22, 2017) “Read this before becoming your parents’ caregiver”

To learn more about creating a Personal Care Agreement (or Personal Care Plan), please visit our website.

New Legislation in the Volunteer State Addressing Elder Abuse

Tennessee has now joined a number of states in creating laws and coalitions to protect their seniors from the growing problems of elder abuse.

 Legislation has been introduced by lawmakers in Tennessee that recognizes the growing problem of elder abuse. According to Nashville News Channel 5’s report, “New Legislation Targets Elder Abuse,” Senate Bills 1192, 1230 and 1267 were created to help protect against physical, mental and financial abuse. They would also increase penalties for people who commit such crimes.

The bills would add more criminal penalties for those found guilty of elderly abuse. They would also increase communication between government agencies to raise awareness of scams that target the elderly and ease restrictions on financial confidentiality laws, which permit family members to report problems.

The bills are from the Elderly and Vulnerable Adult Abuse Task Force.

The Tennessee Bankers Association noted that the new laws would also give financial institutions additional authority to act, if an employee thought that a customer was being taken advantage of financially.

“Bankers are often on the front lines. We see our customers being scammed and under current law, there isn’t really anything we can do,” said Tim Amos, Executive Vice President of the Tennessee Bankers Association. "To have a process to allow us to ask you to pause the transaction or wait until tomorrow or until you consult with family, is a pretty big step.”

The National Council on Aging reports that about 10% of Americans who are age 60 and older have experienced some type of elder abuse. The lawmakers in Tennessee found studies over the past 10 years showing that the reported cases of assault and financial exploitation of vulnerable adults has gone up by at least 20%.  It is estimated that as many as one in 23 cases of elder abuse go unreported.

The 2010 census found that the portion of the U.S. population over age 65 is 13.4% of the total. The fastest growing segment includes those who are age 85 and older.

Lawmakers expect the bills to receive bipartisan support as the bills work their way through the state’s legislative process. The bills will be sent to committees in the coming weeks.

Reference: Nashville News Channel 5 (February 28, 2017) “New Legislation Targets Elder Abuse”

Please visit our website to learn how you can protect yourself and your loved ones from elder abuse and exploitation.

Want to Create a Disaster? DIY Estate Plan is a Sure Path!

Trying to create an estate plan is a lot like do-it-yourself dentistry. It just doesn’t work.

There are people who think that creating an estate plan is something they can tackle. After all, there’s plenty of information on the web, including templates for important provisions. The cost of cleaning up after you pass, will be long remembered and not appreciated by your heirs.

Modern Medicine’s article “Estate planning: Don’t make these mistakes” says that, in some instances, folks try to create their estate plan without consulting an experienced lawyer. These folks think that because they may have a general understanding of estate planning, they can do it for themselves without the help of an estate planning lawyer. But everyone’s different, and boilerplate forms won’t always cover a specific situation. Take a look at this list of potential estate planning mistakes that you can help to avoid by working with an experienced attorney.

Failing to update your estate plan. Your life and financial circumstances may change over time. As a result, you need to change your estate plan accordingly.  You should also make sure to review your plan regularly.

Failing to revise your will. The will that you drafted 15 years ago may no longer apply for a variety of reasons. You can’t just cross-out provisions or names on an old will, add or change information, and initial the document. That won’t work and could revoke the entire will. You need to see an estate planning attorney.

Failing to use more than joint tenancy to avoid probate. Many assets are transferred outside of wills, like assets titled in joint tenancy that pass to the surviving joint tenant, not under your will. Remember this only avoids probate on the first death. When the surviving spouse dies, the home will usually end up going through probate.

Failing to coordinate the will and trust. If you have a will and a trust, you must ensure that the documents are aligned so your wishes will ultimately be carried out. If you don’t, there will be delays and unnecessary expenses.

Failing to title assets correctly. You want your primary residence, vacation home, bank accounts, brokerage accounts, retirement accounts and vehicles to be passed on to the persons you designate.  Therefore, be certain to keep beneficiary designations up-to-date and to properly title accounts.

Failing to name successor or contingent beneficiaries. If you don't update a beneficiary designation after a beneficiary dies, there’ll be no successor to receive those assets when you die. You should name more than one beneficiary on your accounts and keep your designations up to date.

Failing to name a person to make health care decisions. Designate someone that you trust to follow your wishes as far as your healthcare decisions in the event you are incapacitated. Depending on the state, this may be called a living will, a medical directive, a health care proxy or an advance health care directive.

Failing to update outdated financial powers of attorney. If you chose a person to make financial decisions for you with a power of attorney some years ago, his or her circumstances may have now changed, along with your situation. Consult with an attorney about how to proceed.

We like to think of ourselves as intelligent and self-reliant individuals.  However, there are certain things in life, estate plans among them that are best left to professionals. There is a reason for that. Estate law differs from state to state and templates that you find on the web may not be applicable to your situation. They might also not be legal. Do all the online research you like, but when it comes to creating the legal documents for your estate plan, work with an experienced estate planning attorney.

Reference: Modern Medicine (December 1, 2016) “Estate planning: Don’t make these mistakes”

To learn more about the importance of consulting an estate planning attorney, please visit our website.

Fearing Loss of Control is One Reason People try to Hide Alzheimer’s

Planning for life with Alzheimer’s includes selecting trusted family members or friends who can assist with legal and financial matters.

It was at least three years after his diagnosis that comedic actor Gene Wilder revealed he was suffering from Alzheimer’s disease. This is not unusual, according to experts discussing his situation in the Investment News article, “Hiding Alzheimer's, like Gene Wilder did, is natural, so prepare for it with all clients.” Wilder, star of Blazing Saddles, Willy Wonka and the Chocolate Factory and many other classic comedies, died at age 83 from complications of Alzheimer's disease. He wanted to leave his audiences laughing, rather than being sad that he was suffering from this dreaded disease.

Most Alzheimer's patients will hide their symptoms as long as they can because they fear losing control of their lives if family or friends are under the impression they can’t take care of things on their own.

The first thing to recognize is that cognitive impairment is a significant risk. Financial advisers and elder law attorneys should take steps to protect these clients' finances from the impact of debilitating conditions like Alzheimer's. This is best accomplished before they notice any changes in the individual’s behavior. With dementia and Alzheimer's so common in the elderly, criminals frequently target older individuals because they can more easily be swayed into releasing money or disclosing personal information.

The first thing elder law attorneys will do is have their clients execute a legal document that lists the family members or friends whom the attorney can contact to discuss private information if he or she believes the client is starting to have cognitive problems. Clients may need some time to consider this difficult issue. However, if they refuse to provide this information, financial planners will often require them to sign a different document that releases the adviser from liability if the client is harmed because of his or her cognitive decline.

Get the complete legal picture from an experienced elder law attorney.

Advisers may also have a checklist to complete each year about their clients to monitor changes and document them over time. When they see “red flags,” like a client with memory loss or difficulty understanding the consequences of decisions, advisers may ask that a trusted contact start attending planning meetings.

There is no way to make a diagnosis of Alzheimer’s pleasant. But once this has occurred, the family needs to address the medical, legal and financial matters that will be faced in the future. An elder law attorney with experience in this area will be able to help.

Reference: Investment News (September 1, 2016) “Hiding Alzheimer's, like Gene Wilder did, is natural, so prepare for it with all clients”

To learn more about ensuring your estate plan reflects your wishes both now and in the future, please visit our website.

Candid Discussions on Memory Loss with Your Physician Are A Better Way to Go

Early diagnosis can improve quality of life if it is dementia, and if it is not, your doctor can discuss other reasons for short-term memory loss and treatment options.

The older the patients, the less likely they are to discuss a memory problem with their doctor during an office visit, according to a review of federal government data from more than 10,000 people. This review, published in Preventing Chronic Disease, also revealed that in 2011 as few as 1 in 4 adults age 45 and older discussed memory problems with their physician during routine checkups. The journal article and its findings were reported in US News & World Report's "Too Few Older Adults Tell Doctors About Memory Loss: Study."

Routine checkups can be a missed opportunity for assessing and discussing memory problems for the majority of older adults. Experts say the stigma of memory loss and dementia may keep some from discussing these issues with their doctors.

Many think that as long as we don't mention it, memory loss might just be normal aging. However, talking about memory troubles doesn't necessarily mean you have dementia. It might be another highly treatable condition, like depression. But if it is related to dementia, recognizing it early is crucial.

Patients can meet with family members and an experienced elder law attorney to get advice on making individualized decisions for their care, rather than relying on last-minute decisions.

Memory loss and the possibility of the early onset of dementia is a difficult discussion for both the physician and patient, particularly in light of the long-term implications. However, early diagnosis of dementia is important, as even mild memory loss from early Alzheimer's disease may be improved with medication (although these prescriptions don't stop the disease's progression).

Having a discussion with your physician about memory loss and whether the lapses are occasional or increasing in frequency will allow your condition to be assessed. If specialized testing is done, then you and your doctor will know if your situation requires treatment or special planning. This is just like any other condition that requires diagnosis and, if indicated, treatment.

Reference: US News & World Report (January 28, 2016) "Too Few Older Adults Tell Doctors about Memory Loss: Study"

Please visit our website to learn how you can make individual decisions now for your care. 

Eight Florida Districts Experiment with “Eldercaring Coordination”

The challenges facing families when a parent is suffering from dementia or is not competent to make decisions can place a terrible strain on even the most cohesive families. When families are unable to work together, the guardianship process becomes a legal and financial nightmare. Florida is one of several states that are trying a new approach to this problem.

Caring for a vulnerable parent or spouse can become a huge problem when siblings and relatives are busy doing battle with each other instead of taking care of their family member. In extreme cases, which are more common than you might imagine, the situation escalates until a guardianship procedure is the only solution.

The Sarasota (FL) Herald-Tribune's article, "Trying mediation to stem family feuds," says that if the dispute reaches a boiling point, the likely result is an adult guardianship process that strips the elder of any legal right to make decisions and puts a relative or professional in full charge of his or her finances, personal life, and health care.

The more complicated and deep-seated the family feud, the more likely it is that a probate judge will have to appoint an outsider to act as the elder's guardian.

Florida's probate system can make guardianship matters worse, some say. But Florida's 12th Circuit is one of eight districts trying an experiment with potential to stem the costly and bitter litigation that can happen with guardianship cases. If successful, it could be a guide to help families settle differences without resorting to probate court.

Eldercaring coordination is a conflict-resolution plan that brings all of the interested parties to the table to develop a caregiving plan. Modeled on an intervention used successfully in high-conflict divorce cases—parenting coordination—it's two years in the making.

The goal is to save time, money, and headaches, while concentrating on the elder's safety and autonomy. This puts the solution back in the family's hands, with the assistance of the eldercaring coordinator.

Because this is experimental and not court-ordered, family members must volunteer to participate. Plus, since it is unfunded, each participant must pay a portion of the cost, although coordinators may do some work pro bono.

It is still too early to know whether or not this solution will take hold. The eldercare coordinator has a challenge to bring the parties together and to share the costs. It took a long time for divorce mediation to become mainstream; this may similarly take time until it is an established practice. To learn how we can help you or a loved one plan in advance, please visit our website. 

Reference: (Sarasota, FL) Herald-Tribune (December 5, 2015) "Trying mediation to stem family feuds"

 

New Legislation Enacted in Certain States to Protect Elderly Investors

After a long and high-profile life of philanthropic endeavors, socialite Brook Astor died in 2007 with an estate worth $200 million.  Two years later, her son Anthony Marshall was convicted of stealing millions from her. Astor suffered from dementia, and Marshall was paying himself from her assets. While not all families enjoy this level of wealth, the fact pattern is not all that unusual.  A large and growing number of Americans suffer from dementia-type illnesses and many of them may be taken advantage of by family members.

States are now trying to provide greater protection for elderly investors, according to a recent Reuters article titled “Protecting dementia sufferers from scammers gains ground in U.S.” Retail brokers in three states thus far have been permitted to help deter scams against people with dementia.

The laws, which are being examined by other state legislatures, allow brokerages to halt an older client’s request to transfer money to others (at least temporarily) if a wealth manager suspects that his or her customer may have dementia and may unknowingly be the victim of a scheme.

More than 5 million Americans over the age of 65 have Alzheimer's disease, which is the most common form of dementia, the article says. Citing the Alzheimer's Association, that figure accounts for roughly 1.5% of the U.S. population. Experts say this could grow to 7.1 million by 2025. 

The elderly are often easy targets for con artists and unscrupulous family members. In fact, U.S. seniors lose approximately $2.6 billion annually to financial exploitation. And more than half of this financial exploitation is committed by friends, family members, or caregivers.

Elder financial abuse is frequently hard to detect, but the article explains that requests for large, "questionable" sums of money can often be a clear sign.

Philip Marshall (Anthony's son and Astor's grandson) commented that these new laws might have helped protect his grandmother. The younger Marshall is a professor of historic preservation in Rhode Island who recently went on sabbatical to devote more time to elder protection issues.

Brooke Astor was an heir to the Astor family fortune that started back in the 18th century. She passed away in 2007 at age 105, and had a $200 million estate. Most of this was earmarked for charities. Unfortunately, her son exploited part of her estate that was to be used for her personal expenses. He paid himself roughly $1 million for managing her affairs in 2006, as was revealed in a court proceeding.

Some have concerns about these laws and think that perhaps the government could empower wealth managers to interfere with legitimate transactions and keep elderly people from their investments, the article reports. FINRA, an industry watchdog, is also developing guidance on the issue, with input from the SEC, as brokerages have asked for clarity on this because of rules that require them to execute a customer’s transaction.

Roughly half of the states have laws that require employees of financial institutions to contact state agencies if they suspect an elderly customer is being financially exploited. However, many of these laws do not include retail brokerage employees or allow those institutions to delay withdrawals.

Brokerages are often put in a tough position when this situation arises. Contacting concerned family members to question an elderly client's instructions could run afoul of laws about protecting privacy, as well as rules that require processing transactions on time. That said, following the client's instructions can help the customer who otherwise may fall victim to a con or abusive caretaker. As it stands in most states, brokers could be liable for taking action or honoring such a transaction.

Contact an experienced estate planning attorney for guidance on how trusts may be used to help curb this abuse.

Reference:  Reuters (July 1, 2015) “Protecting dementia sufferers from scammers gains ground in U.S.”

 Please visit our website to learn how trusts may be used to help protect your investments. 

How To Avoid Elder Financial Fraud and Abuse

Fraud cases involving elderly clients are on the rise, with nearly half of the CPA financial planners who participated in the survey, around 47%, saying they have seen an increase in financial fraud in the last five years.

According to a recent On Wall Street’sarticle, titled “Elder Fraud: 9 Tips to Protect Clients,”there are two reasons for this increase.One is the fact that fraud is more likely to be reported these days with greater awareness in our country. Also, retiring baby boomers haven’t all been the most tech-savvy—scammers see them as easy targets with sophisticated frauds to steal their money.

The AICPA survey showed that the elderly are being scammed via phone and online scams, capitalizing on their inability to say no and falling victim to confusing or too-good-too-be-true representations. Here are some tips from the survey that elderly individuals can use to protect themselves:

• Create your financial plan and review it twice a year. Your estate planning attorney can help you make sure that the assets on hand are the same as what is detailed in the plan.
• Have a System of Checks and Balances. Contact information regarding your support team should be given to your estate planning attorney. These include bankers, accountants, clergy, and any designees with authority over health-care concerns, as well as family members and loved ones. Fraud is stifled with open communication among the members of the team, so that others are aware of actions and decisions.
• Communicate regularly. The article reminds people that it’s important to communicate any changes in their situation to their estate planning attorney.
• Allow your estate planning attorney to speak with family members. It is helpful to have your estate planning attorney be able to talk to family members or a professional on your team. Again, communication is important and can help recognize and stop fraud from occurring.
• Designate a co-trustee. This will help prevent an unscrupulous family member from taking advantage of an elderly individual by imposing their will and signing away their assets. The article suggests that if this is an issue, talk to an estate planning attorney about a revocable living trust and assigning a co-trustee for the account.
• Require double signatures for larger dollar amounts. This is a great way to make sure that a large chunk of money doesn’t walk out the door without your say-so. Thus, the reason for a co-trustee: to ensure that all checks are reviewed and approved by the co-trustee if more than a pre-determined amount. This can help reduce the risk of fraud, the article advises.

These are but a few examples. Your estate planning attorney can help you with other strategies and techniques to help prevent financial fraud and exploitation.

 Reference: On Wall Street (July 1, 2015) “Elder Fraud: 9 Tips to Protect Clients”

To learn more about protecting yourself or a loved one from elder abuse, please visit our website.

How Will California Be Able to Help Seniors?

By the end of 2015, it is expected that 5.1 million persons age 65 and over will make their homes in California.  Add aging baby-boomers to the state’s current migration patterns and it is entirely likely that the state will be home to more than 8.4 million seniors by 2030.  A recent report by the Senate Select Committee on Aging and Long Term Care, A Shattered System: Reforming Long-Term Care in California adds clarity to what may become a massive fiscal challenge for the state and its senior residents: “Reliance upon our existing patchwork of programs and services to serve our growing aging and disabled population will result in unnecessary expenditures, inequitable access, and irrelevant services.”

California is trying to make progress in improving the services available to its growing senior population, according to an article in The (Crestline CA) Alpenhorn News titled “Legislative protection for seniors”.

California passed AB 1899 last fall, which required any licensee found to have abandoned residents of a residential care facility to be permanently banned from operating facilities in the state. Also, California legislators passed AJR 29 in 2014. This bill asked for the restoration of federal funding for senior nutrition programs that was reduced by federal cuts, as well as to exempt these programs from future budget cuts. The federal government’s reply to this request is stalled.

Now the state’s legislators are considering AB 1122, the “Excluded Persons Administrative Action List,” or “EPAAL” legislation. It requires the state’s Department of Social Services, Community Care Licensing (DSS/CCL) to publish online all persons who are excluded from owning, operating, and/or working inside any licensed care facility as a result of an Administrative Law proceeding. The article notes that right now there’s no mandatory requirement for DSS/CCL to refer elder neglect, abuse, or other egregious behaviors against seniors residing in assisted living facilities to law enforcement, so very few of these crimes are prosecuted. But through Administrative Law proceedings, DSS/CCL can permanently or temporarily prohibit a person from working in a licensed care facility.

The current bill is supposed to provide convenient, online access to EPAAL, allowing everyone to verify that caregivers and the employees don’t have a prior history of behaviors which endangered the health or safety of a senior.

Reference: The (Crestline CA) Alpenhorn News (June 19, 2015) “Legislative protection for seniors”

Please visit our website to learn how we help seniors. 

The State of Kansas Teams Up Resources to Prevent Elder Abuse

In a new and dynamic partnership, The Office of the Kansas Securities Commissioner (KSC), the Kansas Department for Children and Families (DCF) and the Kansas Department for Aging and Disability Services (KDADS) has chosen this week to recognize World Elder Abuse Awareness Day (WEAAD). WEAAD is a global program created by the International Network for the Prevention of Elder Abuse and the World Health Organization. The primary goal is to provide people around the world with the knowledge and awareness necessary to prevent elder abuse in their communities.

Elder abuse comes in many forms, The Hays (KS) Post explains in a recent article titled “Agencies encourage Kansans to help prevent elder abuse in their communities.” There can be physical, financial, or emotional abuse, neglect, or abandonment, with several types of abuse often inflicted at the same time. Financial abuse is considered to be the most common form of abuse to elders, and costs its victims $2.9 billion a year nation-wide.

Investment fraud is an area of concern because the victims can have their life savings wiped out with little or no opportunity to recover. Investment fraud can come in many forms, the article warns. The investment might be deceptive on its face, or it could be a legitimate product or service that’s unsuitable for the senior’s situation. Other investment problems include unregistered products, theft of funds, and products sold by an unlicensed adviser or broker. Investors and caregivers are urged to “investigate before investing” and to call the KSC to verify if the product and person selling it are legitimate and whether there’ve been any complaints.

Studies show that family members and caregivers are guilty of elder abuse in more than half of these cases. Anyone can, and should, report abuse of an elderly person in any of its forms—physical, emotional or financial. Isolation, loneliness and poor health can put elders in a situation of being at greater risk for these scams.

The DCF has really ramped up its focus on fiduciary abuse over the past few years and has a staff auditor dedicated to pursuing financial exploitation of vulnerable citizens with the help of law enforcement.

“It is the responsibility of every Kansan to report suspected abuse,” DCF Secretary Phyllis Gilmore said. “We strive to work closely with law enforcement and other agencies to protect vulnerable adults.”

Reference: The Hays (KS) Post (June 20, 2015) “Agencies encourage Kansans to help prevent elder abuse in their communities”

To learn more about protecting yourself and your loved ones, please visit our website.