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. There are new rules in place that allow for remote execution of the financial powers of attorney.

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.

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 Hearings are Suspended

The circuit courts reopened as of June 8, 2020.   However, it is not clear at this point what the time frame will be between filing for guardianship and when a hearing will be heard.   It is expected that uncontested guardianship matters will be spread throughout the day instead of being heard all at once in a courtroom full of people.  For a contested guardianship, it is expected that there may be an unusual delay in getting a hearing date as matters scheduled but delayed because of the court closures will likely be heard first before new matters.  That means that it is highly likely that contested matters will be pushed back.

Some courts are moving towards video conferences for uncontested guardianships. But this is not a uniform rule as of now. There are also exceptions for this general rule that allow for emergency matters to be heard on an expedited matter.

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.

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.

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 to implement remote witnessing for last wills and testaments.

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.

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 new emergency rules to implement remote witnessing for advance directives.

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.

COVID-19 Maryland Nursing Homes

We understand that there is a lot of anxiety regarding nursing homes during this COVID-19 pandemic.

But, just as before COVID-19, seniors are still failing in their health. Many of them will need 24-hour care that can be provided through a live-in aide (very expensive) or through placement at a nursing home.

If Your Loved One Needs Nursing Home Care During COVID-19

However, as of now, many nursing homes in Maryland are not accepting new residents. While nursing homes are taking precautions by separating the COVID-19 residents from those who do not have COVID-19, many facilities are still not admitting any new residents.

As a result, some hospitals are keeping their patients longer than normal because they can’t locate an available nursing home. If a patient has a delayed discharge from the hospital for this reason, then issues can arise with Medicaid and with who is paying for that extended stay.

If Your Loved One Starts Nursing Home Care During COVID-19

For those nursing homes accepting new residents, they will be asking for information relating to your family’s level of assets and income. Be prepared to provide that financial information, as well as providing a copy of the financial power of attorney and advance directive.

If the nursing home wants you to sign the nursing home contract, no matter how nice the director of admissions is, tell them that you need your elder law attorney to review the contract first before it is signed. This is a normal request, and it will help you avoid potential problems in the future, such as having your loved one get involuntarily discharged from the nursing home, or having the nursing home seeking immediate payment from you if the Medicaid application is denied.

If Your Loved One Stays in a Nursing Home During COVID-19

For existing residents of nursing homes, there is a very real issue of staff shortage to address current needs. Staff shortage can often lead to nursing home negligence issues.

Because most nursing homes are not open for family visitations, there is a very real concern of family members not being in a position to determine if the nursing home is still properly caring for their loved one.

One possible solution to this is that many nursing homes will allow for private duty aides/attendants to visit your loved one to provide their care. This is normally a welcome solution for a nursing home that is dealing with a shortage of staff. This can also provide a direct link of information that normally would not exist. This could include not only insight for medication and care, but also open up the possibility for telephone or video calls. Some nursing homes only extend the visiting privileges to certain nurses/aid agencies, while others have less stringent requirements.

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 issues of nursing home cases. Please call us at 410-296-8166 x292.

COVID-19 Medicaid

We understand that there is a lot of anxiety regarding nursing homes during this COVID-19 pandemic.

But, just as before COVID-19, seniors are still failing in their health. Many of them will need 24-hour care that can be provided through a live-in aide (very expensive) or through placement at a nursing home.

If you choose to have your loved one cared for in a nursing home, it’s important to understand your options for financial assistance. Since nursing homes charge roughly $9,000 to $12,000 a month, applying for Medicaid (i.e. the government program that helps with medical costs) is still going to be a reality for most families.

Medicaid Applications

Even during the COVID-19 pandemic, Medicaid applications are still being accepted. The Medicaid case workers are now working remotely.

Medicaid Application Tips
1. Send all applications via a private courier to ensure that they are filed.
2. Always make a copy of everything that is filed.

At present, there seems to be a temporary decrease in the amount of time that it takes for a case worker to respond to the initial application. This might be a result of an overall reduction in the number of Medicaid applications, since many nursing homes are not currently accepting new residents. This may be a temporary lull.

If Your Medicaid Application is Denied During COVID-19

If your Medicaid application is denied or not processed in a timely manner due to inaction, then you should make an appeal before an administrative law judge. Even though the pandemic has resulted in making all in-person meetings and Office of Administrative Hearings temporarily suspended and closed to the public, you still have an option.

The Office of Administrative Hearings is encouraging parties to participate remotely. This is not an automatic consideration, so the appealing party must specifically request a remote hearing.

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 complexities of Medicaid cases. Please call us at 410-296-8166 x292.

Financial Power of Attorney in Maryland

The key issue with financial powers of attorney is that if the power is not granted in the power of attorney, then it has not been granted. For example, if the power of attorney is silent regarding life insurance transactions, then you will have no right to use that power of attorney for life insurance transactions.

Over a decade ago, each attorney or law firm had their own unique financial power of attorney. However, the problem was that financial institutions could (and would) dishonor a financial power of attorney for no discernible reason.

That all changed when Maryland enacted sweeping financial powers of attorney rules that went into effect on October 1, 2010. From that point forward, Maryland adopted two financial power of attorney forms.

If the form you use is in “substantial compliance” with one of the two statutory forms, then the financial institution must honor it.

Maryland General Power of Attorney and Maryland Limited Power of Attorney

There are many differences between the two Maryland financial power of attorney forms: the Maryland General Power of Attorney (8 pages) and the Maryland Limited Power of Attorney (16 pages). The main difference is that the Maryland Limited Power of Attorney is much more robust than the Maryland General and affords the power of attorney holder a much wider and more useful set of powers than afforded in the Maryland General.

Problems with Internet-driven Powers of Attorney

One of the big issues that I see with Internet-driven powers of attorney (besides the execution issue), is often they do not conform with the Maryland standard power of attorney. Therefore, you are powerless if a financial institution refuses to honor it.

Another huge issue is that the Internet documents are often not nearly as robust as the Maryland statutory forms. It’s as problematic as taking out a rowboat that has half a dozen holes in it. The issue is even worse if a parent was competent at the time the first document was signed, then when you need to use it, you find out there are problems. But, by this point, it may be too late to have a parent sign a new power of attorney, especially if they are no longer competent to sign a new one.

Elder Law Attorney Ensures Proper Financial Power of Attorney

The first document I review when a family comes for a consultation regarding their parent or loved one is the financial power of attorney. I 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.

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

COVID-19 Pandemic and Elder Law in Maryland

Be Your Loved One’s Advocate During the Coronavirus Pandemic

Having to be isolated and separated from a loved one, especially a parent or spouse that needs your assistance, can be both a frustrating and terrifying experience. Places of healing and safety such as nursing homes are now coming under significant strain. The most vulnerable amongst us face a threat that is both elusive and seemingly pervasive. It is during these unusual times when serving as your loved one’s advocate, when they are not in a position to do so themselves, is most critical.

Essential Legal Documents: Financial Power of Attorney and Advance Directive

Legal documents, such as financial powers of attorney and advance directives, at one time were just afterthoughts to many of us, like unused jumper cables that you never quite used. However, now they are being thrust into the limelight. The question is, do you have one? And can you use it?

The Maryland Circuit Courts are now closed until June 5, 2020, with only the most critical cases being heard (at the time of this writing). So, having the court intercede in guardianship matters is not an immediate solution.

The path that must be utilized is through the financial powers of attorney and advance directives. Both documents enable you to act on behalf of your loved one, especially at a time when they are not in a position to act in their own best interests.

Elder Law Attorney Ensures Valid Legal Documents

Not all financial powers of attorneys and advance directives are equal. Nothing is worse than having an Internet-driven document, and then, in a moment of crisis, when you attempt to use it, discovering that it utterly fails.

It is critical that you have a good elder law attorney draft the proper financial power of attorney and advance directive. With social distancing and stay at home orders, the issue of how to execute these documents also presents unique problems. Let us assist you in executing these documents to meet the current requirements.

Even with the proper financial power of attorney and advance directive, you must be familiar with how to use it, and to know what you can do and what limitations exist. This information is critical if you are to be the best advocate for your loved one. Let us help you with practical advice and solutions.

Contesting a Last Will and Testament

Suppose you have a loved one who has passed, and all of a sudden there is a brand-new last will and testament that either greatly reduces your share or leaves you out completely. What do you do?

A Common Scenario for Contesting a Last Will and Testament

Here’s an example of a common situation. As an only child, Katie enjoyed a great family life with her loving parents. Sadly, Katie’s mother was diagnosed with a terminal illness and passed away. Years went by, and Katie’s dad got remarried. By this time, Katie was a young adult, living on her own. She didn’t really get to know her new stepmother and younger stepsister, who moved in with her dad. A year later, Katie’s father was in a serious car accident. He eventually slipped into a coma and died.

Katie had assumed that she would inherit most of her father’s estate. However, she was shocked to discover that a new last will and testament left her with only 25%, and the rest to her stepfamily. Katie suspected that her stepmother had forged her dad’s signature on the new will while her dad was in the hospital. Katie was not going to let her stepmother “rob” her of her rightful inheritance. So, Katie decided to take legal action and contest the last will and testament.

How You Get Notified of a Last Will and Testament

When someone dies, the original will is “probated” and submitted to the Register of Wills office in the county where the decedent resided. When the original will is probated, both the new beneficiaries and all of the “intestate heirs” will receive notice of the new last will and testament.

Intestate heirs typically include the surviving spouse and the decedent’s children. If you are an intestate heir you will be notified of the opening of the estate. If you are not an intestate heir (i.e. more remote relative, stepchild, etc.), you may not receive notice that the Register of Wills is probating this new will.

Contesting a Will Now or Never

It is incumbent for you to challenge the last will and testament in a timely fashion. Otherwise, your right to contest the last will and testament will be waived (a most unfortunate circumstance). This means that if you do not file action to challenge the new will in a timely fashion—even if you did have the best case to overturn the last will and testament—then you will have forever lost the right to challenge the will.

Four Ways to Contest a Last Will and Testament

Once you are at the point where you believe the last will and testament is invalid (for example, the decedent was not competent to sign the document or there is no way he/she would sign this document), you need to understand that there are four basic methods to invalidate the last will and testament. Each of these are independent rights to challenge the last will and testament.

  1. The signature is fraudulent.
    If the signature is a fraud, then typically we would need a handwriting expert to analyze the signature, along with a good number of signatures that we know are valid.
  2. The last will and testament was not executed properly.
    For a last will and testament to be executed properly, the signature must be witnessed, and there must be two witnesses to this signature. Common issues are that the witnesses were not present when the signature was made or that someone else signed on the decedent’s behalf. Execution issues are common when the last will and testament was obtained online.
  3. The decedent was incompetent at the time it was signed.
  4. The decedent was subject to undue influence at the time it was signed.

If the decedent was incompetent or subject to undue influence, the path to invalidate the last will and testament is more complex. It’s important to have eyewitness observations of the decedent (i.e. the decedent did not drive, could not dress himself, often repeated sentences, forgot what was talked about 10 minutes later, made bizarre accusations of people stealing items, no longer cared about paying bills, etc.). Ultimately, however, we will need to obtain the medical records of the decedent.

In order to get the medical records of the decedent, a challenge to the last will and testament needs to occur. Once this process begins, a subpoena may be issued to the hospital, nursing home, assisted living facility, or physician’s office at issue. It is certainly important to know which place is at issue.

Once we get eyewitness testimony and receive the medical records, we have an expert review all of this information. The expert will verify if the information is sufficient to determine if the decedent was incompetent or subject to undue influence. Undue influence is a seven-factor test, with the most important factor being if the decedent was in a weakened physical or mental state. It is important to note that incompetency is a higher standard to meet than undue influence.

Even with the expert opinion, we need to convince the court that this evidence rises to the standard of incompetency or undue influence.

Attorneys Help Protect Your Loved One’s Intentions

Unfortunately, it is not uncommon for someone who is in a weakened condition to be preyed upon by others who seek financial advantage. It is up to you to fight back to protect your loved one’s true intentions. We’re here to help you.