Guardianship Issues – Physician Certificates – Part 2

What happens if a person needs a guardian and the disabled refuses to be examined for guardianship purposes? If there is a person in the household that refuses to allow that person to be examined, then there is a clear legal route for the court to be involved. But what happens if your parent is in the home alone and simply refuses to be examined? Now what?

Maryland Guardianship Complication

Maryland law on this precise issue is a bit more complicated. As strange as it seems, the law is very clear that if a person is preventing someone from being examined then there is a clear path for a hearing. But, it is not so clear if there is no one preventing them from being examined.

Argument that Case Should be Dismissed

When a guardianship petition is filed, the court will appoint an attorney to represent the disabled. In cases where there is no one preventing her from being examined, it is not unusual that the court appointed attorney will argue that the case should be dismissed as Maryland law does not provide that the court can force a person to be examined if no one is preventing her from being examined. It is an absurd argument, but if you take a literal reading of the Maryland provisions you could see their point.

A Winning Argument

But, you must take an aggressive approach and take an expansive review of all relevant guardianship rules to make the argument that the court has the right, even thought the disabled does not have someone that is preventing her from being examined, to order they be examined. This argument must be made to look past the perceived limitations in the Maryland rules. We have taken this expansive view before and won on this issue.

The point is that Maryland law is not as clear as it needs to be on certain issues. It also means that guardianship matters may be more complicated that originally believed and you need competent counsel to navigate through these complicated issues.

Guardianship Issues – Physician Certificates – Part 1

The guardianship process is a complex process with many moving parts. The very first step, however, can often be the most challenging. When a petition for guardianship is filed, you must file with it, proof of the person’s disability. This is a certificate completed by the disabled’s physician, psychiatrist, psychologist, nurse practitioner, or licensed social worker (or a combination thereof). But, what happens when the disabled does not want to be examined for guardianship purposes? This is when it can lead to some complications.

Addressing a Complication

There may be several reasons why the disabled does not want to be examined. The first is that there is a person in the household who does not want the disabled to be examined. That could be the spouse of the disabled. Or, this could be another family member or caretaker who, for various reasons, may not want the disabled examined. These reasons could range from not acknowledging that the person is disabled to elder exploitation that the other member of the house wants to keep secret the extent of the person’s disability as to expose that disability may threaten their ability to get money from the disabled.

Person in the Household Refuses to Allow the Disabled to be Examined

If there is a person in the household that refuses to allow the disabled to be examined and there is a reason to believe the disabled may be at risk unless a guardian is a appointed, then the guardianship petitioner may ask the court for a hearing to force the disabled to be examined. This means that instead of the normal one hearing requirement, that there will be at least a two-hearing requirement. At this hearing, you will need to prove there has been a refusal for examination and prove the person may be at risk unless a guardian is appointed. If the court grants your request, they will then have the disabled examined by two physicians. If both physicians agree that the person is indeed disabled, then the case proceeds to the next hearing regarding who is to be appointed guardian.

But, what happens if there is no one else in the house and therefore the only person refusing is the disabled person herself? Stay tuned for the next blog entry.

Do You Need an Attorney to Apply for Maryland Medicaid?

Applying for Medicaid (i.e., Medical Assistance) can be like walking into a minefield. There are a number of ways that a Medicaid application can go wrong—and the consequences can be absolutely devastating.

Here are some examples of common problems we see.

1. Nursing Home Mistakes

Sometimes a nursing home files the Medicaid application but doesn’t tell you (the family) the application’s status. That is a problem because then you will have to bear the brunt of the burden if the nursing home makes any mistakes with the application.

The Medicaid application process is extremely time-sensitive. It is not instantaneous, and in fact, it could be several months between when an application is filed and when notice is received of the application’s approval or denial. The problem is that the nursing home bill is accumulating during this entire period of time, at $9,000–$12,000 a month. If in three months the Medicaid application is denied, the next thing you know, you must cough up $36,000 or more for the nursing home’s failed application.

If you do not pay, then the nursing home will start the discharge proceedings for the resident. Worse, if you signed their contract, then the nursing home will come after you personally for the unpaid bill…plus interest…plus attorney fees.

In one of our cases, our client was a nursing home employee, whose mom was a resident at that nursing home. He had trusted his employer (the nursing home) to correctly file the Medicaid application for his mom. Many months later, the Medicaid application failed, and the nursing home gave him a bill for over $100,000. They expected him to pay it immediately or his mother would be discharged!

2. Payments to Relatives

This is another big Medicaid problem. For instance, your mom goes into a nursing home, and an application for Medicaid is made on her behalf. Three months later, the Medicaid case worker denies the application because your mom helped you buy a house. Now there is a big penalty in which the nursing home won’t be paid for months.

Now what happens? The nursing home will begin discharge proceedings, and their attorneys will start looking for ways to get paid. If you signed the contract, they will come after you. If your mom owns a home, they will demand that it be sold. And if you do not comply, then they will file for guardianship to get the court to appoint someone who will sell the home.

3. Surprise Assets

Suppose a Medicaid application is filed for your mother, and you subsequently find a life insurance policy in her name. You report this information to the Medicaid caseworker, as you should, and now, because of this life insurance policy, your mother has excess resources and is denied Medicaid.

But it has been three months since the application was filed, and now the nursing home bill is $30,000–$40,000. As in the previous scenarios, they will threaten to discharge, get their attorneys to go after whoever signed the nursing home contract, and if there is an asset to be sold (i.e., a house) they will either force you to sell it or file for guardianship to get someone else to sell it.

Avoid the Medicaid Minefield

There are several other ways that an application for Medicaid can be denied, leading to absolutely disastrous results. You could find yourself in litigation with the nursing home over their bill, ensnarled in a complex Medicaid appeals process, and fighting in court over who makes decisions for your mother.

All of these are real and possible outcomes to a failed Medicaid application. That is why it is imperative that you have an elder law firm with the expertise behind them to help address these issues head on and avoid the minefield associated with a Medicaid application. Call our office today at (410) 296-8166 x292 for a consultation.

How to Apply for Maryland Medicaid

What Is Medicaid?

Medicaid is the name of the federal program that helps people with medical costs. In Maryland, the program is called Medical Assistance.

In the context of elder law, Medical Assistance is the program that covers skilled nursing care. There are three levels of care for most seniors: 1) independent living; 2) assisted living; and 3) skilled nursing care. Medical Assistance helps pay for skilled nursing care in the nursing home.

Where to Apply for Maryland Medicaid?

A Medical Assistance application must be filed with the local department of social services. Many of our clients are in Baltimore City and Baltimore County, and their applications are filed at the Bureau of Long Term Care in Catonsville. Depending on which county the applicant lives in, the application may be filed at the Catonsville office or another local department of social services office.

When to Apply for Maryland Medicaid?

The critical date to consider is the last day of the month prior to filing the application. That is a key date in terms of getting the assets in place.

Who Is Eligible for Maryland Medicaid?

Medical Assistance is a very asset-driven process. The Medical Assistance applicant can have no more than $2,500 in countable assets, while the community spouse (if any) can have no more than $130,380 in countable assets. (The community spouse is the healthy spouse who is not applying for Medicaid. It is important to note that the Community Spouse Resource Allowance changes regularly, and this maximum allowance may be lower in some circumstances.)

What Is a Countable Asset?

In short, a countable asset is anything that the applicant or applicant’s spouse can liquidate to pay for nursing home expenses. But there are a number of exceptions to this rule. For instance, the house may be a countable asset, but it depends on factors such as the title to the house, if it was the primary residence, and the amount of the equity in the house. There are a whole host of other quirky rules when it comes to what is a countable asset or not.

How to Access Your Parent’s Assets?

But a preliminary question that you must ask is, “Can you access this asset?” If you’re like most of our clients, then you are probably looking into this issue on behalf of one of your parents who needs nursing home relief. We often work with the daughter or son who is responsible for filing the Medical Assistance application on behalf of their parent.

If you want to access your parent’s assets, then the key document for you to have in this process is the financial power of attorney. It is this document that will allow you to access your parent’s assets—in order to either make them available to pay for nursing home expenses or to put them in a position to be protected from nursing home expenses.

Financial Power of Attorney

The first document we review when a son or daughter comes for a consultation regarding their parent is the financial power of attorney. We typically know in the first few minutes of the consultation if the document they have is going to help facilitate what we want to do or be a problem.

Some people think it will be “easier” to just grab a power of attorney online. However, this can cause several issues. For example, it could be improperly executed; it might not provide the power you need; it might not conform with the changes to the power of attorney rules enacted in 2010; or the current agent might be the community spouse, but they don’t want to relinquish their role as power of attorney holder. Of course, even if there is a wish to get a new power of attorney, it may not be possible if the parent is no longer competent enough to grant one. In that event, the court needs to get involved in order to appoint a guardian.

So, don’t try to do this on your own. Have an experienced elder law attorney draft a proper financial power of attorney that is robust to handle just about every situation. It is our practice to go through this document with you section by section and explain how each section is used, from a practical point of view.

How Long Does It Take to Apply for Medicaid?

If you can get the assets in place within the month prior to seeking the application, then the Medical Assistance application can be filed with the local department of social services, and then…you wait.

Medical Assistance case workers have 30 days to make a “yes” or “no” determination regarding your application. But almost always they ask for more information in a document that both you (if you are the Medical Assistance representative for the applicant) and the nursing home receive. Often, the information asked for by the case worker is due in a week, or a few days, or the deadline has already passed. Unfortunately, because of the normal processing time within the Department of Social Services and the United States Postal Service, it is not unusual that this type of deadline occurs.

How to Prepare

Medical Assistance is such a paper-intensive process (i.e., five years of tax returns, birth certificate, marriage certificate, access to five years of financial accounts and transactions, etc.) that the process itself may seem unwieldy.

It also means that you should be prepared, as a Medical Assistance applicant, to explain every transaction on the five years of banking activities. The normal rule is that the transactions greater than $1,000 are examined (although that is not always the case). All kinds of unique issues may be raised here, from co-mingling assets with a relative, to the gifting of assets, to unexplained deposits and withdrawals. However, you as the applicant have the burden to prove the transactions at issue are not disqualifying events.

The normal Medical Assistance application process takes about three to five months, but it can certainly vary, depending on the complexity of the application. Our firm gets involved with all kinds of Medical Assistance applications, whether it’s a normal application for benefits with no complications, or whether it’s a complete disaster with assets and transactions that are voluminous or unknown.

The Medical Assistance Minefield

Applying for Medical Assistance is like walking into a minefield. This is an analogy that we have created and continue to use with our clients.

If you’re preparing to apply for Medical Assistance, then let us help you navigate the minefield—before it’s too late and mistakes are made. As your family prepares to apply, you will be better served by getting a clear roadmap of your unique application, the problems that you may encounter, the methods to overcome them, and if applicable, methods by which you can protect your family’s assets when you have to pay for things that Medical Assistance will not cover.

Our firm can help, whether you are just starting the process, or whether there is a looming Medical Assistance hearing and the nursing home is threatening to discharge your parent (or worse). Call us today for a consultation at (410) 296-8166 x292.

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.

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.

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.

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:

The number of people applying for Medicaid
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.

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?

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.
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:

There is an even greater need to use the advance directive and financial power of attorney.
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.

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.