Tools for Seniors

HIPAA Release as part of Estate Plan in case of Long Term Care

Posted on May 25, 2017 by Jim Koewler — No Comments ↓

Last week’s installment (May 19, 2017) discussed everyone should include a HIPAA Release as part of an estate plan in case of emergency. This week’s installment will discuss the importance of a HIPAA Release when someone needs long term care.

As mentioned last week, a HIPAA release allows a person’s health care providers to share private health information with whomever is named in the HIPAA release. Also as discussed last week, the person’s health care providers may not feel able to share such information even with the person’s Health Care Agent until the patient is unable to make decisions for himself/herself. (Remember, the Health Care Agent is the person appointed in a Health Care Power of Attorney to make health care decisions when the patient, called the Principal for purposes of signing the HIPAA Release.) Fortunately, or unfortunately, the privacy requirements also apply to long term care providers.

The applicability of the HIPAA’s privacy requirements to long term care providers is fortunate because we all should be able to keep our health information private and to expect our providers to keep it private as well. It helps us maintain our dignity (even in the face of the frequent indignities that accompany long term care.)

On the other hand, the applicability of HIPAA’s privacy requirements to long term care providers is unfortunate because it sometimes keeps concerned family members out of the loop. In fact, sometimes long term care providers use the privacy requirements to stifle pushy family members. Concerned family members can (and should) ask questions about a loved one’s care. Concerned family members should try to participate in the quarterly care conferences required for people receiving long term care.

However, when the staff gets tired of the family member’s pushiness, the staff can invoke the HIPAA privacy requirement to explain the need to stop sharing information with the family members. A member of management might apologize for the inconvenience and for the inadvertent sharing of information in the past (“until we realized our mistake.”) Nonetheless, the staff might suddenly invoke the privacy requirements to exclude the pushy family member from care conferences and maybe even day-to-day discussions of the loved one’s care and condition. The staff might even invoke the privacy requirement against a Health Care Agent if the Principal (the loved one receiving care) hasn’t been legally deemed incompetent.

The staff’s real goal might not be adherence to the privacy rules but might be extricating themselves from someone they consider a bother. It may not be fair. It may not be right. Yet, caregiving staff has a tough enough job. Shutting down someone they deem an interference might bring them a little relief. (Not everything that we like or want is fair to others.)

So, people who want their family members and or friends to be able to advocate for them in long term care should execute a broad blanket HIPAA release as part of an estate plan.

Legal Issues when someone has Dementia – The Spouse’s Advance Directives

Posted on January 28, 2016 by Jim Koewler — No Comments ↓

This week’s blog continues the discussion of Legal Issues when someone has Dementia. The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?” The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place. The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared. The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney. The June 4, 2015 installment discussed how to decide whether to prepare a Living Will. The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney. The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.” The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.” The July 2, 2015 installment discussed revoking prior Powers of Attorney. The July 9, 2015 installment discussed Do Not Resuscitate orders. The July 16, 2015 installment discussed the Right of Disposition designation. The July 23, 2015 installment discussed the Will (or Last Will and Testament.) The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. The August 6, 2015 installment discussed whether to pre-plan a funeral. The August 14, 2015 installment discussed choosing a final resting place. The August 28, 2015 installment discussed pre-planning the funeral ceremony. The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral. The September 10, 2015 installment discussed medical insurance choices. The September 17, 2015 installment discussed long term care insurance. The September 24, 2015 installment discussed how an elder law attorney can help. The October 1, 2015 installment introduced the concept of guardianship. The October 8, 2015 installment discussed the application process for guardianship. The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding. The November 12, 2015 installment discussed the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding. The November 19, 2015 installment discussed the Probate Court’s examination of “less restrictive alternatives” to guardianship. The December 4, 2015 installment discussed the Probate Court’s examination of who should be the guardian. The December 10, 2015 installment discussed the difficulties that a family member might face if appointed guardian. The December 17, 2014 installment discussed the difficulties that a family might face if a professional guardian is appointed for a loved one. The January 14, 2016 installment discussed the termination of a guardianship. The January 21, 2016 installment discussed alternatives to guardianship. Today’s installment will discuss the need to revisit the spouse’s Advance Directives and other planning issues.

Someone who has a disease that causes dementia often is married. The dementia of the one spouse might leave the other spouse without someone to make decisions in an emergency or in the event of his or her own cognitive decline.

Most married couples, if they have prepared Powers of Attorney, have named each other the Agents in those Power of Attorney documents. The spouse that now suffers from dementia is no longer the appropriate person to have as the Agent for the “well spouse.” That “well spouse” should have new Power of Attorney documents prepared, if possible.

The “well spouse” may have successor Agents named in his or her Power of Attorney. If so, that makes new Powers of Attorney less urgent but no less important. If something were to happen to the “well spouse” that made it necessary for an Agent to start making decisions, there could be a delay in accepting the successor Agent while awaiting confirmation (from a doctor, perhaps) that the primary Agent (the spouse with dementia) cannot act as Agent. That delay can’t be good for the second spouse. So, when someone suffers from dementia, the spouse of that someone should redo his or her Powers of Attorney and name someone other than the “ill spouse” as Agent and the successor Agents. With the new Powers of Attorney, the spouse who does not have dementia should also prepare a HIPAA release and a living will (if wanted.)

If the “well spouse” has new Advance Directives set up, he or she should also at least consider the other preparations that have been discussed in this series:
– Long Term Care plan,
– Do Not Resuscitate Order (if appropriate,)
– Right of Disposition designation (naming who is in charge of funeral implementation),
– Last Will and Testament,
– Updating beneficiary and “transfer on death” designations on assets and financial accounts,
– Pre-planning a funeral and final resting place,
– Medical Insurance,
– Consider Long Term Care insurance,
– Designate someone whom the “well spouse” would prefer to be guardian, if one should be necessary (sometimes included in a General Power of Attorney document,) and
– Talk with an Elder Law Attorney about what planning for the future.

These new Advance Directives and other preparations aren’t necessary the next day after learning that one’s spouse has dementia, but the sooner the better. Certainly, a month should be long enough to have the new Advance Directives prepared.

(Ed. Note: This is the end, for now, of the series on Legal Issues when someone has Dementia.)

Legal Issues when someone has Dementia – Alternatives to Guardianship

Posted on January 21, 2016 by Jim Koewler — No Comments ↓

This week’s blog continues the discussion of Legal Issues when someone has Dementia. The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?” The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place. The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared. The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney. The June 4, 2015 installment discussed how to decide whether to prepare a Living Will. The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney. The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.” The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.” The July 2, 2015 installment discussed revoking prior Powers of Attorney. The July 9, 2015 installment discussed Do Not Resuscitate orders. The July 16, 2015 installment discussed the Right of Disposition designation. The July 23, 2015 installment discussed the Will (or Last Will and Testament.) The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. The August 6, 2015 installment discussed whether to pre-plan a funeral. The August 14, 2015 installment discussed choosing a final resting place. The August 28, 2015 installment discussed pre-planning the funeral ceremony. The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral. The September 10, 2015 installment discussed medical insurance choices. The September 17, 2015 installment discussed long term care insurance. The September 24, 2015 installment discussed how an elder law attorney can help. The October 1, 2015 installment introduced the concept of guardianship. The October 8, 2015 installment discussed the application process for guardianship. The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding. The November 12, 2015 installment discussed the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding. The November 19, 2015 installment discussed the Probate Court’s examination of “less restrictive alternatives” to guardianship. The December 4, 2015 installment discussed the Probate Court’s examination of who should be the guardian. The December 10, 2015 installment discussed the difficulties that a family member might face if appointed guardian. The December 17, 2014 installment discussed the difficulties that a family might face if a professional guardian is appointed for a loved one. The January 14, 2016 installment discussed the termination of a guardianship. Today’s installment will discuss alternatives to guardianship.

When someone has dementia and he or she seems to no longer have the ability to make decisions necessary to prepare powers of attorney and, for whatever reason, a guardianship is not appropriate or not wanted, options for having one person specific person able to make decisions have become limited.

Now, even though the person seems to longer have the ability to prepare powers of attorney, he or she might have some lucid moments in which to make such decisions. The family can seek the help of an estate planning attorney. If the attorney is satisfied that the person can decide to sign powers of attorney, the attorney can prepare them. These new powers of attorney designate who can make decisions when the person’s lucid moments have gone.

In the absence of the person’s own ability to make decisions and the absence of someone appointed to make decisions (ether through a power of attorney or a guardianship,) the caregivers for someone with dementia have to rely on guidance from the next of kin (which can be very tricky if the family disagrees.)

If even input from the next of kin isn’t available, the caregivers are left to their consciences. They must do what is necessary for the person with dementia and do what they know in their hearts to be the right thing to do.

With the difficulties, inconveniences, and sometimes strife that can come from a guardianship proceeding, some families in which someone suffers from dementia might choose to forego guardianship and, instead, muddle through as best they can. I can’t fault families that make this choice.

Unfortunately, some people with a disease that causes dementia will not have a designated decision-maker. In such cases, caregivers are forced to do their best with only their own caring hearts and their experience to guide them.

Legal Issues when someone has Dementia – Consider how to Pay for a Funeral

Posted on September 3, 2015 by Jim Koewler — No Comments ↓

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia. These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions. Following on the previous discussions [(1) whether to pre-plan a funeral, (2) choosing a final resting place, and (3) planning the funeral ceremony,] this week’s discussion will focus on paying for the funeral.

There are three choices for paying for a pre-planned funeral: Don’t pay until the funeral, pay the funeral home in advance, or buy funeral insurance. Each has some advantages and some disadvantages.

PAY AT THE TIME OF THE FUNERAL

Payment at the time of the funeral has the advantage of allowing the family to pay only for what funeral services are actually used. A pre-planned funeral is important, but the actual funeral might be smaller (i.e., less expensive) than the original plan. As we age, we outlive more of our friends and loved ones, making the cost of a funeral smaller often because of shorter calling hours and a smaller repast. Payment at the time of the funeral allows the payment to fit the actual services without the need to adjust plans to fit the pre-paid budget.

Payment at the time of the funeral also has the advantage of delaying the discomfort of dealing with the funeral any more. Pre-planning the funeral may be tough enough emotionally. Taking the extra step of paying at the time of the planning might add to the emotional weight of the task.

The disadvantage of waiting until the funeral to pay is that there may be no money left to pay for the funeral. The person’s cost of living may have used up all available funds, especially if the person needed long term care before passing away. Then, the family has to find money to pay for the funeral.

PRE-PAY THE FUNERAL HOME

Pre-paying the funeral home might lock in the costs for many of the funeral services, at least those that the funeral home provides directly. Some funeral homes make this promise for pre-paid plans. (On the other hand, some of my clients who believed that they had locked in their funeral costs by pre-payment did not, in fact, receive such a lock-in. The families had to pay more money at the time of the funerals.)

A pre-planned funeral with pre-payment at the funeral home is the easiest for the family to manage. Most of the services and most of the payment are already arranged and at the same place. It’s as close as one can get to “one stop shopping” for a funeral.

Pre-paying a funeral also has the advantage of being an allowed expense by the Medicaid rules for long term care. A person who needs long term care and who needs Medicaid coverage to pay for it is allowed (encouraged, even) to pre-pay his or her funeral. As long as the payment matches the funeral cost estimate and as long as the payment is irrevocable, the funeral fund isn’t considered an “asset” that would make the person financially ineligible for Medicaid. Pre-paying at the funeral home fits Medicaid’s requirements for a pre-paid funeral.

A disadvantage of pre-paying at the funeral home is that the funeral home may go out of business or may change ownership (to an owner whom the family may not want involved in the funeral.) Legally, the family can ask for the money in the pre-paid fund to be transferred to another funeral home. Making such a request, however, while a family member is grieving the loss of a loved one may be more difficult than the family wishes to pursue. In addition, while most pre-paid plans at a funeral home are supported by a type of funeral-specific life insurance policy, the family tends to think of the pre-payment with the funeral home, not the insurance company. If the funeral home goes out of business, the family may have no thought to look for an insurance policy. Similarly, if the person moves, the funeral may not take place at the funeral home where it was planned (because the person’s friends are near the new home.)

Another disadvantage of pre-paying at the funeral home comes from the possibility that the deceased may have been on Medicaid for long term care. (This is a little complicated.) A person in a nursing home usually has a personal account at the nursing home. It tends to be used for hair care, field trips, and visits to the snack bar. A person on Medicaid is allowed to keep some of his or her monthly income to save into this personal account. As the person ages and becomes weaker, his or her use of the personal account decreases, but the monthly deposits into the account continue. When a Medicaid recipient passes away, nursing homes (at least in my area) believe that they can pay that personal account to the person’s funeral home or to Medicaid (as a small repayment toward the amount that Medicaid had paid for the person’s care.) If the funeral home has received full payment for its services because of a pre-payment at the funeral home, the nursing home will send the contents of the personal account to Medicaid (because there isn’t an easily identified shortfall in the costs at the funeral home to which the personal account can be dedicated.)

The third disadvantage of pre-paying the funeral home is that the funeral home may not wish to accept pre-payment for expenses that are not directly for the funeral and burial. For example, some family members may need to travel to attend the funeral and to stay overnight in a hotel. In my experience, funeral homes do not wish to accept pre-payment for these expenses that are not run of the mill.

PRE-PAY VIA INSURANCE

The funeral-specific life insurance mentioned above in which the funeral home usually places the funds it receives for pre-payment is available (in Ohio anyway) for direct purchase by the public. Pre-paying the funeral through the purchase of such insurance has some of its own advantages and disadvantages.

Direct purchase funeral insurance can cover any identifiable funeral-related cost, including unusual costs like travel for out-of-town family. A cost for such unusual items must be documented at the time the insurance is purchased, but the coverage is available.

Direct purchase funeral insurance isn’t tied to any one funeral home. It can be used for any funeral service provider. This gives the family greater flexibility to use the pre-payment at any funeral home, protecting against a change of funeral home ownership or a funeral home going out of business. This flexibility also protects the pre-payment from the insured person moving to a new home after planning the funeral.

As discussed above, pre-paying a funeral is an allowed expense in the eyes of Medicaid. Medicaid does not care whether the pre-payment is at a funeral home or to a funeral insurance policy.

Because the funeral insurance isn’t tied to a particular funeral home, the family can capture the money in the personal account at the person’s nursing home. The family should ask the nursing home to pay the personal account to the funeral home. Then, the family uses the insurance policy to pay the rest of the funeral home’s costs and also any other insured costs.

As an added advantage, if the nursing home personal account is large and the projected costs haven’t gone up too much, the added money might exceed the planned costs. This gives the family a cushion to cover the cost of a service that was left out of the plan (and something is almost always left out at the pre-planning stage.)

Using funeral insurance does give up the opportunity to lock in the funeral home costs at the pre-paid level. (The funeral home may or may not offer such a lock-in, but the use of an outside insurance policy will not lock in the costs.)

Also, the use of outside funeral insurance makes it slightly (and I do mean slightly) more complicated to carry out the funeral plan. It’s not the one stop shopping like pre-paying the funeral home, but it’s not much less convenient.

MY PREFERENCE

I tend to have my clients use the funeral insurance. (Apologies to my friends at funeral homes that sell pre-paid funeral arrangements.) Remember, my clients hire me to help them save money on their long term care. As a result, I like the ability to capture the nursing home personal account. I also like the ability to pre-pay for the non-traditional funeral costs so that the family doesn’t have to pay for them at the time of the funeral.

NOTE

I want to offer a final note about the relationship between pre-paid funerals and Medicaid. If the person pre-planning the funeral isn’t suffering from a dementia-causing disease too badly yet so that long term care doesn’t look like it will be necessary soon, the person should go ahead and pre-pay the funeral (assuming that the emotional difficulty in dealing with the funeral plans isn’t overwhelming, as discussed above.) If, though, the disease is advanced and it seems that long term care will be necessary soon, delay the pre-payment for a bit. An elder law attorney can get shelter more of the person’s assets from the costs of long term care by arranging the TIMING of the funeral payment. (There is no right or wrong time to pre-pay a funeral. There is, though, a more advantageous time to pre-pay a funeral.) The timing is very specific to each client, so I do not intend to discuss it in detail.

Legal Issues when someone has Dementia – Pre-Planning a Funeral Ceremony

Posted on August 27, 2015 by Jim Koewler — No Comments ↓

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia. These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions. Continuing the current topic of pre-planning a funeral, this week’s discussion will focus on the steps to take when planning the funeral ceremony itself.

The plan for the funeral should be written down. The person choosing his or her own funeral arrangements won’t be available to provide clarification. (In addition, in our ongoing discussion of someone with dementia, the person making the funeral arrangements may not be able to remember them very long after making them.) It can be written down anywhere on anything, as long as it can be FOUND when needed. The plan should also include projected costs so that pre-funding can be considered as well. (The next installment will discuss payment options.)

The first part of the written funeral plan is to find a pre-need funeral checklist or shopping list. There are pre-need checklists online. (You can find many of them through a search engine.) Funeral homes (and funeral providers that don’t have a funeral home) have pre-need checklists available as well. Pre-need checklists are often a sales tool for funeral services, so they focus on the services offered by funeral homes.

Unless the person trying to pre-plan the funeral can find a satisfactory checklist online, the person should identify a funeral home that he or she would like to use. The choice of funeral home at this point isn’t necessarily final for the eventual funeral services. The family can choose a different funeral home, if they wish, when the person eventually passes away. When that funeral home has been identified, the person should visit (if possible) and get a pre-need checklist.

The person planning the funeral can use the pre-need checklist for a large portion of the planning necessary for the funeral. If the pre-need checklist came from a funeral home, it will almost certainly make available all of the services that the funeral home offers. The person planning the funeral can choose or refuse most of those services, but if the funeral home offers a service, the pre-need checklist will probably include it among the choices.

Depending on the final resting place chosen (discussed in the August 14, 2015 installment,) certain services may be required. These potentially mandatory services include enbalming and a burial vault. (The vault may or may not appear on the pre-need checklist and may depend on whether the funeral home has a long-standing relationship with one particular or a few particular cemeteries.)

One of the items almost certain to be on the pre-need checklist is a choice of casket. A funeral home will have many models available (in full-size versions, child-size versions, or photographs) from which to choose. When choosing a casket, the model name will usually be written on the checklist I suggest that a photograph be taken of the inside and the outside of the casket as well. The model chosen may no longer be in production at the time of death. The photographs will help identify a substitute that is close the the original choice. (I assume that caskets go out of production because a less expensive material or manufacturing process was devised. A casket isn’t like a car which people replace every three or four years. Styles don’t seem to have changed much over the years either. Nonetheless, casket models do go out of production, so photographs are a good addition to the pre-need checklist.)

The clothing chosen for the deceased is usually listed on the pre-need checklist. In addition, the list also usually includes places to list readings and songs that the person would like. If the pre-need checklist does not include these, the written plan should include them.

In addition to the burial vault and enbalming mentioned above, a few other items may or may not be included on the pre-need checklist. (If the funeral home doesn’t make money from a particular funeral-related service, the funeral home does not have an incentive to include that service on the checklist.)

For example, flower arrangements are usually purchased from a florist. If floral arrangements aren’t listed on the pre-need checklist, the planner should visit a florist and choose what he or she wants. (Flowers are a staple of funerals, so most pre-need checklists include them. Some lists don’t, though.)

Pre-need checklists don’t always include a minister as an available choice. (This is rare, but it does happen sometimes.) If the funeral needs a particular minister or a minister of a particular denomination, the plan should make sure to include that choice. (If a particular minister is desired, the plan should include a back-up. That one particular minister may not be available.)

Similarly, the pre-need checklist may or may not ask about a place of worship. If there is a particular place where the funeral should be held, that place should be listed on the funeral plan. If a memorial service is preferred over a funeral, that choice should be made clear on the plan. (Obviously, a place of worship and a choice of minister often go hand-in-hand, but not always.)

If there will be a burial or placement into a mausoleum, there will probably be a charge for opening and closing the grave. Unless the funeral home is affiliated with a particular cemetery, this item is unlikely to be included on the pre-need checklist. To avoid a last-minute surprise, this cost should be obtained from the cemetery and included on the plan.

The repast (the meal after the funeral and sometimes called the funeral breakfast) is often left off the pre-need checklist. This can be a big cost if catered or can be no cost at all if provided by church members or friends. The planner should think about the meal plans and include the necessary description (and likely cost, if any) in the funeral plan.

Travel needs should also be considered. If the deceased person will need to be transported for burial (most often back to a family home,) the arrangements should be described in the plan and cost projections included. If loved ones will need to travel to the funeral, the plan should include how those loved ones will travel and how much that travel will cost.

Finally, the plan should include a list of people who must be told of the person’s death. If possible, the plan should include contact information for those people.

Similarly, the plan should include a draft death notice. The person planning his or her own funeral should get a chance to have the death notice say what he or she wishes.

Planning a funeral can be traumatic, or it can be cathartic. Either way, a person facing dementia should get a chance to plan the funeral he or she wants before that chance is taken away by the dementia.

With dementia already affecting the person and, because of the dementia, long term care likely in the future, planning a funeral is more important and more pressing. If the costs of long term care force the person to seek Medicaid coverage, the Medicaid application process will almost certainly ask about funeral plans and also about pre-payment.

18 Year Old needs Health Care Power of Attorney

Posted on August 20, 2015 by Jim Koewler — No Comments ↓

This week’s blog is “breaking news” in the middle of the ongoing discussion of Legal Issues when someone has Dementia. In fact, this week’s blog takes a break from the over-arching audience of seniors and people with special needs. This week’s blog will address newly minted adults (i.e., 18 year olds.)

When a child reaches the age of 18, his or her parents no longer have the legal right to make his or her decisions. The parents may be able to insist on certain behaviors because the parents are paying the bills or because the 18 year old child/adult still lives at home, but this financial/housing influence doesn’t apply to the rest of the world. Perhaps most pointedly, the parents no longer have the right to make medical decisions.

Urge your 18 year old child to execute a Health Care Power of Attorney. (That’s what we call it in Ohio, where I practice. Other states may have a different name for this document.) A Health Care Power of Attorney appoints someone to speak for the person who signs it (in this discussion, the 18 year old person) on medical decisions when that person cannot speak for himself or herself.

Why can’t this young adult speak for himself or herself? Perhaps the young adult has been in a car accident. Perhaps the young adult has passed out from alcohol or drugs. Perhaps the young adult had a heart attack or serious infection that rendered him or her unconscious. Anything can happen. (A number of these new young adults are going away to college this month. Let’s face it. Some of these college freshmen will do stupid things.)

I suggest that the young adult name his or her mother and father as the Agents (what Ohio calls the appointees in a Health Care Power of Attorney.) If the young adult is moving away to school, I suggest that he or she also name as an Agent a relative or friend at the school or near to it.

As I’ve discussed in prior discussions about the Health Care Power of Attorney and other advance directives, I suggest that the Principal (the young adult in this case) name one agent and some successors. I do not suggest that anyone in the list be made co-agents. The possibility of disagreement between these Co-Agents is too high, and the result of disagreement is that no decision gets made.

In addition, because the Agents should be able to acquaint themselves with the Principal’s medical situation before an emergency arises, the Principal should sign a HIPAA (health information privacy) release naming all of the Agents (primary and successors) as eligible to receive information from the Principal’s primary care physician and any other medical professionals that have current medical information on the Principal. (For example, the records of an orthodontist who put braces on the Principal and has already removed the braces is probably not important to the Agents.) I would not limit the HIPAA release to just the primary Agent. The Principal does not know which of the Agents (primary or successor) will actually be the one making decisions in a time of crisis because the Principal does not know when that time of crisis will be (if ever) and does not know which of the Agents will be available at the time of the Principal’s crisis.

Remember, we hope that the young adult (the Principal) never needs anyone to use the Health Care Power of Attorney. It is, however, better to have the Health Care Power of Attorney in place and not to need it than to need it and not have it.

Ohio has a Health Care Power of Attorney form, and I suggest that the Principal use this form if he or she is an Ohio resident or is going to school in Ohio. Remember, when someone needs to use a Health Care Power of Attorney, the Principal might easily be in an emergency situation. Medical professionals throughout Ohio are familiar with the Ohio form Health Care Power of Attorney. If a patient has a Health Care Power of Attorney that is not on a recognized form, the medical professional may feel the need to check with his or her attorney on the legality of the POA. Checking with the attorney can delay the medical treatment. I like to use the recognized form to avoid this legal advice delay.

Ohio’s form Health Care Power of Attorney is available on my website behind the Toolbox tab. (I can’t give you links because my version of WordPress doesn’t like me to use links in posts. Sorry.)

Legal Issues when someone has Dementia – Choosing a Final Resting Place

Posted on August 14, 2015 by Jim Koewler — No Comments ↓

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia. These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions. Following on last week’s discussion on whether to pre-plan a funeral, this week’s discussion will focus on what to consider when deciding on a final resting place.

First, the person must choose between traditional burial and cremation. This decision can turn on his or her personal preference and/or religious beliefs. It can also turn on cost. (I don’t mean to be crass, but cost is always a factor.)

Second, the person must choose his or her final resting place. Whether he or she chooses cremation or traditional burial, the location is an important step. The location decision can also be the most time-sensitive decision. (Because the final resting place decision is time-sensitive, the choice between burial and cremation is time-sensitive because the final resting place decision depends in part on the cremation/burial decision.)

If the person chooses to have a cremation and have his or her ashes (called “cremains”) scattered or kept somewhere personal, the placement of the cremains can be treated as part of the ceremony. If, however, the person chooses to have his or her remains (whether cremated or not) placed in a cemetery or other location where other people may have their remains placed, the location must be reserved ASAP. If he or she wants to be placed in a prime location (such as “under the big oak tree,” or next to Mom, or in the niche at eye level in the mausoleum) he or she should buy that location NOW before someone else buys it first. The placement of remains in a cemetery is a real estate transaction. The three most important parts of the real estate transaction are “location, location, and location.” If someone gets your favorite spot before you do, it’s not your spot.

The decision to scatter cremains or to be buried or placed in a mausoleum is, like the cremation decision itself, largely based on personal preference and often on religious beliefs. Cost (as always) is a factor as well.

If religious beliefs or costs do not dictate the choice, then personal preference controls. The personal preference might be based on a wish to be placed where loved ones can visit. It might be based on a desire to stay with loved ones, such as cremains kept in a family member’s home. It might be based on an important event in the person’s life. (A friend’s father was an avid golfer. He asked that his cremains be scattered on a golf hole where he scored a hole-in-one.) The decision might also be an acknowledgement of a lifelong interest, such as having ashes scattered in a favorite meadow or forest.

The decision of a final resting place is deeply personal. Someone with the early stages of dementia should get a chance to make that decision before the opportunity gets away.

Legal Issues when someone has Dementia – Consider whether to Pre-Plan a Funeral

Posted on August 6, 2015 by Jim Koewler — No Comments ↓

A person who finds out that he or she has dementia should consider pre-planning his or her funeral, if it is not already planned.

The person may be reluctant to talk about his or her funeral, but it can be a cathartic experience. Nonetheless, some people feel that planning the funeral, like preparing a will, is tempting fate. That’s okay. While I think it’s a good idea to pre-plan a funeral, it’s not going to change how the person’s disease will be managed. If the discomfort thinking about a funeral is too great, then the person should not do it.

There are, however, several good reasons to pre-plan one’s funeral.

First, pre-planning a funeral allows the person to have the funeral that he or she wants. If the person doesn’t leave instructions, then his or her loved ones must make their best guesses on the funeral details that the person would have wanted.

Second, pre-planning a funeral allows the person to set aside money for the funeral. With a plan for a funeral, the person can have confidence that the money set aside is the right amount.

Third, pre-planning one’s own funeral relieves the emotional burden of one’s family to plan it at the time of death. Just as the worst time to shop for groceries is when hungry, the worst time to shop for a funeral is when grieving. If my mother were to die (sorry, Mom,) I might feel the need to show the world how much I loved my Mom by getting her the platinum casket with the silk lining and the gold accents and spend tens of thousands of dollars for it. My mother, might have wanted a simple maple casket costing much less. Now, I know that my Mom has a funeral plan already prepared. If she didn’t have a funeral plan, though, my grief might cause me to spend much more on her funeral than she would have wished and cause me to arrange a funeral very different than what she would have wanted.

In summary, I urge anyone with early stage dementia (frankly, anyone over retirement age as well) to consider pre-planning his or her funeral. Someone with early stage dementia has more of a timing concern before the dementia advances, but any senior should consider whether to pre-plan his or her funeral.

Legal Issues when someone has Dementia – Consider a Right of Disposition Designation

Posted on July 16, 2015 by Jim Koewler — No Comments ↓

The Right of Disposition is a short name for the right to make decisions about and arrangements for someone’s funeral and the disposition of that someone’s bodily remains. In other words, the person who has control over a deceased person’s funeral has the Right of Disposition.

In Ohio (where I practice,) the Right of Disposition is controlled by Ohio Revised Code section 2108. If the deceased person did not make a written designation to put someone in charge of his or her final arrangements, the Ohio statute has a system to determine who is in charge. (It’s not terribly different from the statutory system in state law that sets out inheritance from someone who didn’t leave a will.) Under Ohio law, in the absence of a written designation, the right of disposition goes to (in order):
– Spouse,
– Children,
– Parents,
– Siblings,
– Grandparents,
– Grandchildren,
– Lineal Descendants of Grandparents,
– Guardian when the person was living,
– Personal Representative for the Estate, or the Funeral Director who has the remains or anyone else willing to take responsibility, or
– The Public Official for the person’s public benefits if the person was indigent.

Under the law, there is always someone who has the Right of Disposition. So, why bother to designate anyone?

Many people, late in life, grow close to someone but they never marry. Often, widowed men and women have a long relationship (perhaps intimate, perhaps not.) Sometimes, the family of one of these people do not accept the relationship with the new person. (Usually, it’s the children that do not accept the new person because they don’t want a “replacement” for their deceased parent or they see this new relationship as their living parent being “unfaithful” to the deceased spouse.

If someone grows close to someone else late in life, he or she might want to give the right of disposition to that new “partner” (for lack of a better term.) If, by operation of law, the children have the Right of Disposition, the children may exclude the person who was their parent’s late-in-life partner. (Remember, the children might not have approved of the relationship.) Imagine the partner not being able to say “goodbye.” (Until the recent Supreme Court decision, this was a frequent issue for same sex couples because they could not marry in Ohio.)

Designating someone to have the Right of Disposition isn’t a necessity. For someone who has a partner or close friend in a late-in-life relationship, it might make the difference in having a chance to be there for the funeral.

Legal Issues when someone has Dementia – Consider a Do Not Resuscitate Order

Posted on July 9, 2015 by Jim Koewler — No Comments ↓

Do Not Resuscitate orders are hard. Choosing to execute a Do Not Resuscitate order is a decision to allow death to take you (in the event that the lungs or heart stop.) Choosing a Do Not Resuscitate order (We’ll call it a “DNR” frequently through the rest of this discussion.) is like choosing to execute a Living Will (discussed in the June 4, 2015 installment.) The difference between a DNR and a Living Will is a difference in the part of the body that is giving out. With a Living Will (at least for the purposes of this ongoing blog about dementia sufferers,) the brain has given out. With a DNR, the heart or lungs have given out. A DNR and a Living Will are similar in that the person executing (Please remember from our earlier discussions, “executing” a document is a fancy way of saying that someone signed a document that has some legally significant result.) a DNR or Living Will is documenting a decision to be allowed to die from something that hasn’t happened yet. With a Living Will, the principal (the person who executes the document) has chosen to let his or her body die if, in the future, his or her brain dies. With a DNR, the principal is choosing to die from a heart attack or respiratory distress that might happen in the future. (Just to avoid some reader’s confusion, a Living Will is, in effect, a DNR for someone whose conscious brain has died while the autonomic nervous system is still keeping the vital organs going. If someone is in a persistent vegetative state and has executed a Living Will, that person will not be rescued from a heart attack or respiratory distress, in keeping with the wishes expressed in the Living Will. The possible causes of death of the body of the principal on a Living Will are not limited to heart and lung failures, though.)

Why would anyone choose to allow themselves to die from a heart attack or respiratory distress that hasn’t yet (and may never) occur? In most cases, the principal chooses a DNR because the principal is facing some ailment that will lead to death in a more unpleasant way than a heart attack or respiratory failure. For example, someone suffering from an advanced cancer (for which no treatment is expected to help) might expect a long, painful death. Such a person might wish to die quickly from a heart attack rather than slowly from cancer. Such a cancer sufferer executing a DNR is NOT asking for a heart attack. The cancer sufferer who executes a DNR is telling the world, in effect, “Please don’t bring me back from a heart attack because bringing me back will make me continue to suffer the pain of my cancer for a while longer.”

Someone suffering from dementia might wish to make the same choice. Someone suffering from dementia might wish to allow a heart attack to take them quickly than suffer through the prolonged decline of dementia. I certainly don’t advocate executing a DNR, but I think I can understand why a dementia sufferer might want to have one.

Now, to be clear, the dementia sufferer that we are talking about is someone who has dementia but not advanced dementia. To legally execute a DNR (like with a Health Care Power of Attorney, Living Will, or General Power of Attorney,) the principal must understand what he or she is doing (according to the law in Ohio, where I work.) To have the ability to understand, the principal’s dementia must not be advanced.

Unlike a Health Care Power of Attorney. a Living Will, and a General Power of Attorney that have been discussed in prior installments, the principal cannot execute a DNR by himself or herself. All DNRs (in Ohio, anyway) require the signature of a physician, certified nurse practitioner, certified nurse specialist, or physician assistant. The co-signature by the medical professional is a way to make sure that someone isn’t executing a DNR out of depression or some wish to die.

In summary, in addition to the Health Care Power of Attorney, Living Will, and General Power of Attorney discussed previously in this series, someone who has dementia that is not yet advanced may wish to consider a Do Not Resuscitate order.