Author Archives: A Roa

Elder Law Office Maryland. Adult Guardianship. Britney Spears Conservatorship.

Free Britney Spears: Disturbing Issues About Adult Guardianship

The Britney Spears conservatorship raises a number of interesting issues (that are somewhat complex and disturbing) of how an adult could be subject to guardianship.

The obvious issue is how the state can take away your rights to make health care and financial decisions, when, from the outside, you appear to be within the range of what we consider “normal.” It can give people pause that if it can happen to Britney, it could happen to anyone.

Adult Guardianship in Maryland

The Britney Spears conservatorship occurred in California, but since I am an elder law attorney based in Maryland, my comments stem from the guardianship process in this state.

To successfully file a petition for guardianship in Maryland, you need to submit two physician certificates to the Circuit Court. The certificates need to show that the person who is “allegedly disabled” no longer has the ability to make responsible decisions, due to a mental disability, disease, habitual drunkenness, or drug addiction.

Guardianship for Adults with Mental Disabilities

In Maryland, the majority of guardianship cases are for mental disability, usually dementia. While forgetfulness is an obvious symptom of dementia, the underlying issue is more devastating—an impaired ability to reason. Therefore, the imposition of a guardianship based on mental disability is usually permanent. However, if the mental disability is linked to a single episode (i.e., a mental breakdown), then the guardianship may either be framed as temporary or permanent until proven otherwise.

However, there is a grey area. In the case that someone has an episode that gives rise to their guardianship, but then they recover, there is no obvious way for them to lift the guardianship. The issue is that most individuals, even if they do recover from the disability, may be in a weakened condition and/or have no practical ability to seek to lift the guardianship.

What can make this more complex is if the guardianship ward believes they do not need a guardian (but they really do need one). This is not an uncommon issue for dementia-driven guardianships. Unfortunately, people with dementia may not recognize for themselves the extent of the disease that impairs their ability to reason.

What makes this even more complex is if the person can still communicate in a socially acceptable way, dress appropriately, and then mask their disability through short but appropriate answers or through humor. To an untrained eye, the short and otherwise socially appropriate behavior may be a sufficient mask to give an appearance that they are “fine enough” to make decisions.

Do They Have the Ability to Reason?

At the root of this guardianship issue is someone’s ability to reason. If this indeed is impaired, then the person’s decision-making process becomes muddled and irrational. This can lead to inactions or foolish decisions, which an otherwise healthy individual would have naturally avoided.

In Maryland, you are free to make decisions regarding your health and finances (i.e., you are free to make foolish decisions). But if you are impaired, then you cannot distinguish between foolish and proper decisions. This issue can be even more complex if loved ones don’t want to see the disabled person’s limitations or shortcomings.

How Much Assistance Do They Need?

What if someone still needs assistance to make decisions, but they don’t meet the criteria for guardianship? In that case, it would be wise for their loved ones to help them with an advance directive, a financial power of attorney, and a trust to guide them.

In Maryland, the imposition of a court-ordered trust can be an equitable remedy for an individual that does not meet the guardianship standard but still has a need for assistance. This could be put in place when an individual has substantial assets and may be susceptible to inappropriate influence from others regarding decisions about those assets.

This arrangement would allow someone to serve as a barrier from those that seek to manipulatively influence the individual. Typically, the trust would not hold all the assets, but certainly most of them. This financial arrangement would also not limit the individual from making independent health-related decisions.

What Will Happen for Britney Spears?

For Britney Spears, it appears that an episode caused the imposition of the state to take her health care and financial decisions away from her. If this situation were to happen for someone in Maryland, then they could use another physician’s examination and testimony to recover from the imposition of the state-ordered guardianship.

It will be interesting to see in the months ahead what the ultimate result will be for Britney Spears.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Guardianship. Elder abuse

The Scary Truth Behind Netflix’s “I Care a Lot”

I Care a Lot is a recently released Netflix film that follows the fictional account of a nursing home administrator who systematically exploits the elderly for financial gain. There are dramatic scenes of Marla Grayson (the nursing home administrator) with her wall of mugshots of her elderly residents. It shows a dramatic insensitivity that the residents are nothing more than cash cows to the nursing home system.

More chilling is the twisted use of the court process to declare these individuals as incapacitated, as a way to strip them of their rights to make decisions on their own. In essence, they become victims of a system that is supposed to protect them, robbing them of all decision-making power and their assets.

How Real Is Elder Abuse?

Can this happen in real life? The unfortunate answer is, “Yes”.

While the wall of elderly mugshots and a corrupt physician may be overly dramatic, there is an uncomfortable reality of nursing homes denying their residents basic rights and abusing the court guardianship system and the medical assistance process in order to get paid.

According to the National Council on Aging, up to five million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $36.5 billion.

Certainly, there are many well-run and well-meaning nursing homes, but there are also some nursing homes that are neither. For these nursing homes, their operating process is to cut off the resident’s family, deny them access, or grant access to only those who will align with their goal of keeping the resident at the nursing home and facilitate the nursing home’s wish to be paid.

How Can This Kind of Elder Abuse Happen?

A little background explanation is in order here. Let’s look at the typical process that an older adult might go through to end up at a nursing home.

For example, if your mom is over 65 years of age and has more than a 3-night stay at an area hospital, then she will generally be eligible to receive Medicare benefits. These benefits will pay for her hospital stay and then her nursing home rehabilitation stay—for the first 20 days in full, and then typically up to 100 days, with a co-pay expected from days 21–100. (A 100-day period is not guaranteed though.)

The key here is that the decision to move your mom from the hospital to the nursing home for rehabilitation would be made quickly. It is often the discharge planner at the hospital who makes the recommendation for rehabilitation at an area nursing home of their choice. As such, this is a guaranteed, temporary payment source for area nursing homes.

So, let’s say that your mom goes to nursing home rehabilitation for the 100 days that are covered by Medicare. Then, it’s time for your family to meet and make a big decision. What’s next? Should mom come back home, go to an assisted living facility, or stay at a nursing home?

The Nightmare Nursing Home Situation

At this point, a problem could arise between the nursing home and your family. What if your family and your mom’s health care agent want to take her home, but the nursing home recommends that she stay there? That is when the nightmare could begin.

If the nursing home wants to keep your mom, then they might say something like, “Your mother is better off staying here. She gets agitated when your family talks about taking her home.” Thus, the nursing home views your family as “agitators” who are upsetting their resident. Of course, this ignores the fact that your mom might want to come home, and she becomes complacent only when she is not reminded of the option to come home (i.e., she gives up).

Then the nursing home will demand payment. If your mom’s power of attorney holder does not use your mom’s money to pay the nursing home, then the nursing home will file for guardianship. This will strip your right, as your mother’s child, to be her agent.

The nursing home will have the court appoint a random attorney to control your mom’s money, and they will appoint the local Department of Social Services to make health care decisions for your mom. The goal of the random attorney will be to sell all of your mom’s assets and apply for medical assistance (i.e., Medicaid) to continue to pay for her nursing home stay. The goal of the Department of Social Services representative will be to just keep your mom at the nursing home where “she is safe.”

It is not unheard of that the nursing home will cut off access to your mom’s medical information or cut off your contact with mom all together. This issue has become even more pronounced during COVID-19.

It is not unheard of that the nursing home, when it files for guardianship, “conveniently”:

  • does not list you and your family members as interested persons
  • fails to mention that your mom has a power of attorney holder or health care agent (when they know of both)
  • tells you not to worry about your mom’s guardianship hearing and that you don’t have to attend
  • blindly files your mom’s medical assistance applications without knowing her assets, in order to have Medicaid pay the nursing home. (Please keep in mind that the medical assistance reimbursement, while it is not as high as the private pay rate, is substantial.)

The nursing home will often characterize this new guardianship filing as an “emergency” guardianship filing, not because there is any emergency with your mom, but because they want to get paid as soon as possible. The nursing home does not want a non-payment situation that could result in your mom’s discharge. (Although, from your family’s perspective, a non-payment situation leading to discharge would be just fine, if you wanted to take your mother home anyways.)

Adult Guardianship Issues in Maryland

In order to have a successful filing for a guardianship petition, in Maryland you need two physician certificates to prove that your mom is unable to make financial or health care decisions on her own.

Here are some questions about guardianship that you might have, along with my responses:

  • Is it possible that there could be corrupt physicians gaming the system to fraudulently declare your mom as incapacitated, as shown in I Care a Lot? That I have not seen.
  • Is there a lot of grey area when it comes to meeting the guardianship standard? Yes.
  • Are there cases when such a certificate is completed by a physician in 5 minutes, based solely on the first certificate? Yes.
  • Have there been circumstances of a physician completing certificates for guardianship in full, before even meeting the individuals or never meeting them? Yes (but that is rare, from my point of view).

The more common issue is not whether your mom needs help or not, but whose decision is that to make and what right does the nursing home have to make that decision.

Local Elder Law Firm Expertise

I’ve been in practice for over 19 years, and I don’t think there has been a single incident of a parent saying that they want to go to a nursing home. Nursing home placements are contemplated as a last resort when nothing else works.

The issue in many cases is that the nursing home becomes a third party in a battle over where mom is going to reside in her final days. Oftentimes, mom’s voice becomes irrelevant. But make no mistake, at the heart of this process, the nursing home’s concern is how it’s going to be paid.

The nursing home will frame the context to say that mom is “safer” there than at home. This argument will be used by the nursing home to convince the court that she should continue to stay there. The nursing home will have access to her medical records and the financial resources to hire a physician to articulate this position.

At our elder law firm, we are often involved in fighting these decisions. That means that we fight to get access to your mom’s medical records (which may lead to a separate battle of their release) and fight to maintain your right to make decisions for mom.

If the court appoints a random attorney as guardian of the property, as stated before, their sole role is to sell mom’s assets. If there are jointly held assets, an attempt will be made to sell them. If there are gifts of assets or transfers within the last 5 years, they will come under scrutiny, and depending on if there are assets to fund this random attorney in litigation, there will be an effort to have these gifts undone or otherwise transferred back.

The next thing you know, you are being cast as the “bad guy” for not returning these gifts, and now litigation begins with your mother’s guardian of the property and you to get these assets back. The reason why the guardian of the property may go after these transfers is that these transfers may be barriers for the nursing home to be paid by Medicaid. Gifts within 5 years are penalized transfers and will be barriers for the nursing home to be paid. As such, they will likely be pursued.

At the heart of these transactions is the court process, which will be used to try to keep mom at the nursing home, sell all of her assets, have strangers appointed as her guardian, and have this third-party attorney go after you, if you are involved in transactions that prevent the nursing home from being paid.

This is not the storyline of I Care a Lot. But the core issue of the nursing home being paid and abusing the judicial system to meet their needs is very real. And the nightmare, while not as dramatic as the plot of I Care a Lot … is very real.

We Care a Lot

At the Law Office of Adam J. Roa, we understand how scary and overwhelming these issues can feel for your family. As an experienced elder law firm in Maryland, we are here to guide you and fight for you. Please call us for a consultation at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

Postal Service Delays Affect Court Filings and Medical Assistance Applications

In 2020, many of you undoubtedly noticed significant delays with the United States Postal Service. Our elder law office in Maryland also noticed that our mail was either slow to be received or, in some cases, appear not to have reached their final destination.

While that may be a minor inconvenience for mailing bills, it can be devastating for court filings and medical assistance (i.e., Medicaid) applications. Many court filings are very time sensitive, so it can be a major problem if they are delivered late or not at all.

Electronic Filing in Maryland Jurisdictions

Some jurisdictions in Maryland mandate electronic filing, so the issue of late mailing does not impact these filings. However, not all circuit court jurisdictions have electronic filing available. In particular, Baltimore City and Prince George’s County do not have electronic filing systems in place yet. Also, no Orphans’ Court or medical assistance process has electronic filing.

Use Courier Instead of USPS

If your court filing is not received, or even if it is late, then that can be a complete barrier for your case proceeding. It may even result in your case being dismissed, for reasons beyond your control. That is why, for the foreseeable future, critical non-electronic filing should occur via courier.

Even if you send your filing via a courier service, such as FedEx, there are still some risks. For example, you are asking the FedEx worker to place your filing in a unique location at the courthouse, which may not be familiar to them. That can also lead to lost filings.

We all hope that this issue with the United States Postal Service is temporary. But for now, we are keeping a close look at this issue. And for non-electronic filings, we are using a courier to file our cases.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate. Medicaid.

How COVID-19 Impacts Medicaid Applications

COVID-19 has brought a lot of anxiety regarding long-term care facilities. However, we understand that even in a pandemic, there are seniors who need to be cared for in a nursing home.

With nursing home costs ranging from $9,000 to $12,000 a month, applying for medical assistance (i.e., Medicaid) is a practical reality for most nursing home residents.

But how has COVID-19 impacted how long it takes to process a Medicaid application? There are several factors to consider:

  1. The number of people applying for Medicaid
  2. The number of people processing the applications
    • First, the staff at nursing homes. They fill out the health assessments that are needed as part of the applications.
    • Second, the case workers at the Department of Health. They process the completed applications.

An increase in the number of Medicaid applicants and/or a shortage in the number of people processing the applications will increase the amount of processing time.

Before COVID-19

Before the pandemic, Medicaid applications, especially those with complications, were slow to be processed. This was due to the chronic shortage of case workers at the Department of Health.

At the Start of COVID-19

When the pandemic began, hospitals were keeping their patients longer instead of discharging them to nursing homes. This was because of the growing concern that nursing homes were not prepared to address the spread of COVID-19 amongst their residents.

The result was that, for a period of time, there were fewer transfers to nursing homes, which meant that fewer individuals were applying for Medicaid. Fewer applications resulted in quicker than normal response times for the granting of Medicaid applications. But this was at the beginning of COVID-19.

Currently During COVID-19

Hospitals are now discharging patients to nursing homes at a more regular pace. Therefore, the number of Medicaid applications is back to normal. Also, the processing speed of the case workers is back to normal.

However, the new bottleneck is with the nursing home staff. Due to staff shortage, it’s taking nursing homes longer than normal to provide the health assessments that are needed for the applications.

Local Elder Law Firm: How We Help During COVID-19

These are trying times for most people, but especially the residents and staff at our area nursing homes.

No one likes a delay in the Medicaid application process. If you have a loved one in a nursing home, then you are understandably already worried about the risks of COVID-19. If the process to apply for Medicaid is long and drawn-out, then that can create even more concern. The nursing home is also more anxious about getting paid during this period, and they may institute involuntary discharge proceedings.

A good elder law attorney understands the Medicaid application complexities (from both a nursing home point of view and a client point of view) and how this is going to impact clients. At the Law Office of Adam J. Roa, we help you understand why the Medicaid application process is slower than normal, and we help expedite that process, so your loved one can get the medical assistance they need.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

How to Execute Estate Planning Documents During COVID-19

When your relative is in an assisted living facility or nursing home, oftentimes they cannot access their assets any longer. That’s when it is necessary for you to have the financial power of attorney, which allows you to immediately access your loved one’s assets and act on their behalf.

In Maryland, financial powers of attorney must be notarized.

But during the COVID-19 pandemic, how can you safely get estate planning documents notarized?

  1. Before October 2020: Remote notarization

    In the beginning of 2020, Governor Hogan issued emergency measures to allow for remote notarization. Those emergency measures appeared to address the concerns.

    However, in all reality, the emergency measures made it a Herculean effort to still execute a financial power of attorney. The final financial power of attorney resembled a “Frankenstein power of attorney” because multiple authentication documents were stitched together to form one document.

    Unfortunately, the emergency rules expired in October 2020.

  2. After October 2020: Physical presence of a notary

    The current statutory requirement, per Md. Ann. Code Est. & Trust Section 17-110, is that the financial power of attorney must be signed by the principal (i.e., your relative in the nursing home) before a notary public in the physical presence of two witnesses.

    This means that the principal, the notary public, and two witnesses must all be together in person, at the same time, in order for the financial power of attorney to be officially signed and notarized. Virtual presence (e.g., through Zoom or Facetime) for any of those four people is not acceptable.

The Requirement of Physical Presence

The unique challenge during COVID-19 is that there are severe restrictions about who can enter assisted living facilities and nursing homes. On top of that, even in pre-COVID-19 times, many staff members of these facilities were already reluctant to assist in document executions. They’re afraid of being dragged in as witnesses if someone contests the validity of the legal document.

The requirement of physical presence is an issue not only for getting a financial power of attorney notarized. In Maryland, although last will and testaments and advance directives do not need to be notarized, they do require the physical presence of witnesses.

This means that there are complicated issues across the board with getting estate planning documents executed during the pandemic.

Local Elder Law Firm: How We Help During COVID-19

As a result of COVID-19:

  1. There is an even greater need to use the advance directive and financial power of attorney.
  2. But it is even harder to get these necessary documents executed.

At the Law Office of Adam J. Roa, we work with each family and each assisted living and nursing home facility on a case-by-case basis. As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing these essential estate planning documents for your loved one. Please call us at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Financial Power of Attorney

The most useful estate planning document during this COVID-19 pandemic is the financial power of attorney.

This document allows you to immediately access your elderly parent’s assets. If you’re unsure whether your parent is paying their bills in a timely fashion, then the power of attorney will allow you to access their financial information and pay their bills if necessary.

If your parent isn’t paying the bills, and if you don’t have the power of attorney, then your parent could risk experiencing the interruption of services (i.e. utilities, telephone, Internet), or the instigation of collection efforts, and the possible tax sale of their house.

Locate All Financial Power of Attorney Documents

As with all estate planning documents, your first task is to locate all financial powers of attorney for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you would have two active financial powers of attorney that may have separate instructions. This will create confusion.

Beware of Weak Powers of Attorney

The other critical area of a financial power of attorney is that if the power of attorney is silent regarding a particular power, then the agent was not granted that power. For example, if the power of attorney is silent regarding the right to access a parent’s life insurance policy, then you, as the agent, have no right to access her policy.

The issue of having a financial power of attorney that is not robust enough is a common issue for older powers of attorney or Internet-driven powers of attorney. This creates problems if you discover too late that your power of attorney is too weak—after an elderly parent has already lost the competency to sign a new document.

How to Execute a Financial Power of Attorney During COVID-19

In Maryland, in order for a financial power of attorney to be properly executed, you must have a witness signature, and that signature must also be notarized. Of course, COVID-19 has made that more challenging.

Governor Hogan issued new emergency rules to implement remote notarization at the beginning of 2020. There were new rules in place that allow for remote execution of the financial powers of attorney.  However, these emergency rules expired in October 2020.   The notary rules in place now require the presence of a notary in front of the signor.  This creates unique issues for clients in assisted living and nursing homes that likely have restrictions on who it admits.  Our office normally works with the assisted living and/or nursing home on a case by cases to work with them regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing a financial power of attorney. Please call us at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Guardianship

If your parent or loved one needs someone to make decisions for them, then they will need to have a court-appointed guardian. The main issue for establishing guardianships during the COVID-19 pandemic is the issue of timing.

In Maryland, the normal, non-emergency adult guardianship process is started by filing a petition. After that, it would typically take 6–8 weeks before a hearing would be held to determine who the court was going to appoint as guardian. That has changed under COVID-19 rules.

Maryland Court Guardianship Hearings

After reopening the circuit courts in June 2020, the circuit courts, as of December 2020, entered modified court openings.  Each county will have its own unique policy on in-person vs. remote hearing rules.  However, the general rule, as of now, is that uncontested guardianship will continue to be remotely held for the foreseeable future.    For contested guardianships, this is on a case by case basis.   If there is a strong inclination for in-person or remote hearing for a contested matter, this request should be made expressly to the court.   The other developing matter is the time between when a petition for guardianship is filed and perfected and the eventual hearing date.  That is a continuing to be fluid issue that is impacted by the court closings and the regular rescheduling of court cases.

How to Push Your Guardianship Case Forward During COVID-19

For uncontested matters or matters of limited scope, the best path to proceed is to have all the attorneys in your particular guardianship case cooperate to push for a video hearing. The court is likely going to be more receptive to video hearings if all interested parties are represented by counsel.

Contested Guardianships

The situation is more complicated, however, if the guardianship case is contested—meaning at least two individuals are fighting over who should be appointed as guardian. As long as the alleged disabled person is in a safe environment, then getting a court date in the near future for contested guardianship will be problematic.

Here are some other options you can explore:

  1. Mediations, which can occur remotely, are encouraged. They can be a way to resolve a contested guardianship matter much sooner than having a court rule in a contested matter that may not be set for many months.
  2. What also could be explored is having the interested parties consent to the temporary appointment of a guardian. A key part of this discussion should include agreeing that the temporary guardian is not only limited in time but also has very limited powers. This may be a creative way to address the very urgent decisions now while delaying more complex issues for a court date many months from now.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through your guardianship case. Please call us at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Estate Planning

Challenges of Estate Planning During COVID-19

COVID-19 has made everything more complicated and riskier, from getting food to taking care of family members. With the current stay-at-home orders, and with the likelihood of stores and businesses slowly reopening, how can you best care for your elderly parent or loved one?

Essential Elder Law Documents for COVID-19

The most critical estate planning documents for an elderly parent or loved one to have during this period of time are the financial power of attorney and the advance directive. Also important, but not critical for day-to-day activity, is the last will and testament.

Steps to Take During COVID-19

  1. The first step for families to take is to locate these estate planning documents now.
  2. Then, make sure you have complete copies of all of the relevant documents.
  3. It is not uncommon to have older versions of your estate planning documents. However, it is important that you are only using the most recent versions to avoid confusion.
  4. For the financial power of attorney and advance directive, in many cases you can use copies of the documents in lieu of the originals.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing the essential documents of estate planning. Please call us at 410-296-8166 x292.

To learn more, please see the COVID-19 resource that discusses the unique issues for each estate planning document: financial power of attorney, advance directive, last will and testament.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Last Will and Testament

It is human nature to procrastinate. Often, we have clients that review the estate planning documents only when there has been a health care crisis in the family. However, with the global health crisis of the COVID-19 pandemic, many families are now making it paramount to focus on the essential estate planning documents, including the last will and testament.

Locate all Last Wills and Testaments

As with all estate planning documents, you should locate all last wills and testaments for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the most up-to-date version is used.

It is also critical to locate the original last will and testament. Conformed copies are not original documents and will not be accepted by the Register of Wills unless all of the interested parties consent.

How to Execute a Last Will and Testament During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for a last will and testament.

Governor Hogan issued new emergency rules in the beginning of 2020 to implement remote witnessing for last wills and testaments.  However, those rules have now expired.  Witnesses will have to be present for a last will and testament execution.  This presents a unique challenge for those clients that are in assisted living and/or nursing homes.  We will work with an assisted living and/or nursing home on a case by case basis regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing a last will and testament. Please call us at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Advance Directive

It is critical during this time period that if you have a loved one in the hospital, in an assisted living facility, or in a nursing home, that you have his/her advance directive. Since contact with a loved one during the pandemic may be extremely problematic, it’s important for you to already have this document, explaining your loved one’s preferences.

Locate All Advance Directives

As with all estate planning documents, you should locate all advance directives for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you will have two active advance directives that may have separate instructions. This will create confusion.

Not All Advance Directives Are Called Advance Directives

In Maryland, the advance directive has two parts to it:

  1. the health care agent instructions and
  2. the living will.

They normally, but not always, are part of one document called the advance directive.

The health care agent instructions should provide a HIPAA release (medical information disclosure authorization), and the living will should address the three Maryland end-of-life decisions:

  1. terminal condition
  2. end stage condition, and
  3. persistent vegetative state.

Usually one of the biggest issues with the end-of-life choices is whether one should be tube-fed or not. That decision should be very clear in the living will portion of the advance directive.

How to Execute an Advance Directive During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for an advance directive. There are several restrictions as to who can serve as a witness for a Maryland advance directive. In Maryland, the health care agent cannot be a witness. Also, at least one of the witnesses cannot knowingly inherit anything from the declarant.

Governor Hogan issued emergency rules in the beginning of 2020 to implement remote witnessing for advance directives.  Those rules are now expired.   This creates unique issues for clients in assisted living and/or nursing homes.  Our office normally works with the assisted living or nursing home regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing an advance directive. Please call us at 410-296-8166 x292.