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.

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:

the health care agent instructions and
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:

terminal condition
end stage condition, and
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.

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.

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 Essential Estate Planning Documents

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 entering modified openings. There is a uniform leaning towards remote hearings but not all hearings are remote. If the request is made for an in-person hearing it may be scheduled a number of months in the future (with the possibility of being rescheduled depending on Covid-19 issues).

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.

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.
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.
The decedent was incompetent at the time it was signed.
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.

Contesting a Will and a Beneficiary Designation Change

When you consider contesting a last will and testament, you might also have to consider contesting changes to certain additional assets—for example, an account that has had a change in beneficiary designation or a change to joint account status.

A Common Scenario for Contesting a Last Will and Testament and Beneficiary Change

Let’s go back to the example of Katie’s situation. Katie discovered that the beneficiary designation of her father’s savings account had been changed. The beneficiary was no longer Katie—it was now her stepmother. Katie was afraid that her stepmother would start spending all the money in her father’s savings account. So, Katie needed to take legal action immediately to contest both the last will and the saving account’s beneficiary designation change.

Probate Assets vs. Non-Probate Assets

Challenging a last will and testament only impacts those assets that are “probate assets.” Probate assets need a court-supervised probate process in order to get passed on to the beneficiary. Non-probate assets can be given directly to the beneficiary without a court process.

An account is likely to be considered a “non-probate asset” if:

The account has a changed beneficiary designation or
Right before the decedent’s death the account was changed to a joint account

If there are problems with non-probate assets, then challenging the last will and testament is not your only concern. You will also need the Circuit Court to determine if the change in beneficiary designation or the creation of the new joint account is valid.

Four Ways to Contest a Last Will and Testament and Beneficiary Change

The four ways to contest a last will and testament also apply to beneficiary changes:

The signature is fraudulent.
The document was not executed properly.
The decedent was incompetent at the time it was signed.
The decedent was subject to undue influence when the document was signed.

Did a financial power of attorney change the beneficiary?

It is common for a financial power of attorney to change a beneficiary designation. It is important to know if that is the case in your situation. If so, then the issue becomes whether or not the financial power of authority had the authority to make the change. Sometimes the financial power of attorney signs documents when their power of attorney is invalid. Or sometimes the power of attorney exceeds their authority, which would invalidate their change in beneficiary designation.

Contest the Beneficiary Change Before It’s Too Late

If you’re going to contest a change in beneficiary designation or the creation of a new joint account, then you need to consider the timing. While there is the normal statute of limitations to file for Circuit Court relief, a would-be beneficiary could have access to the account as soon as they acquire the death certificate. Then, nothing would prevent them from spending the account’s money.

If you wait too long to file an action in the Circuit Court, then you could face this situation: you win the case, only to see that the money has already been spent. Then you have to engage in collection efforts against the wrongdoer.

The better course would be to immediately file suit to put the wrongdoer on notice. It would also make sense to ask for “injunctive relief” to freeze the account. However, this often requires immediate action after the decedent passes.

Lawyers Help to Contest a Will and Beneficiary Change

Challenging a beneficiary change or a change of an account to joint ownership status can be a complex area of the law. These challenges should only be considered by experts in this area of law. It is important to know what to expect.

For some families, it is unclear in the beginning if they have a rock-solid case, but they have strong suspicions that wrongdoing occurred. In those cases, it is not unusual to engage in litigation to obtain the needed bank account information (i.e. signature pages) and medical records in order to formulate an opinion after this information is obtained.

Often, it is only through litigation that you will be able to access the information that is critical to winning your case. It is not uncommon to see beneficiary designations changed once a decedent was in a weakened condition. Let us fight with you to correct this wrongdoing.

An Advance Directive for Nursing Home Negligence Cases

Having a properly executed advance directive is absolutely critical in nursing home negligence cases.

What is an advance directive?
An advance directive is a legal document that allows you to explain your decisions about medical care. If you are unable to make decisions or communicate in the future, this makes it easier for your loved ones and health care providers to understand your wishes.

What is the difference between an advance directive and guardianship?
Both of these legal tools help others make decisions regarding your medical care if you are unable to make them. However, an advance directive is appointed by you while you are still fully capable. Guardianship, on the other hand, is appointed by the court, after you have already become incapable of making decisions.

Please know that the medical facility has a right to charge you for accessing the medical records.

Why is it important to have an advance directive in a case of nursing home neglect?
In a nursing home negligence case, you need medical records to show the harm that the negligence caused. You have a right to the medical records; but you need legal authority in order to access them. The advance directive gives you this legal authority.

How do I get a properly executed advance directive?
The term “advance directive” is often used synonymously with the term “living will” or “durable power of attorney for health care.” In Maryland, the advance directive normally contains both the health care agent powers and the living will (i.e. end of life decisions). However, it is also not unusual for there to be a separate durable power of attorney for health care and a living will.

To make things more confusing, sometimes the financial power of attorney will have health care agent rights in it as well. There are strict requirements regarding execution of an advance directive in Maryland. It’s important to know the specific requirements of these legal documents. It is also important to know if the documents you already have will be sufficient to get the necessary legal documents.

Our Attorneys Help with Advance Directives
If you don’t have an advance directive, we can help. As elder law specialists in Maryland, we can navigate your family through whatever crisis you might be experiencing. If you think your family member isn’t being treated well at the nursing home, then let’s sit down and talk about it. Give us a call at (410) 296-8166 x292.

Documenting Nursing Home Neglect

Nursing Home Neglect

At some nursing homes and assisted living facilities, the staff and aides are underpaid, untrained, and overworked. In these situations, there is usually a high turnover rate. Therefore, mistakes might often be repeated and not corrected. The mistakes only come to light when disaster strikes, and a family member is willing to fight back.

Nursing home neglect occurs when the facility fails to properly care for their residents. Neglect can be caused by inaction (such as not assisting a resident who is at risk of falling), or it can be caused by improper action (such as physical abuse). Nursing home negligence can lead to serious medical problems, such as needless falls or bed sores.

If You Suspect Nursing Home Negligence

Suppose your mother has a fall at her nursing home. You suspect it’s the nursing home’s fault. She’s currently recovering, so you don’t know the full extent of the harm yet. What should you do?

You might not be ready to take legal action yet. But here’s what you need to do: document the incident.

Document Nursing Home Neglect Now

If you observe potential negligent behavior, or if any incidents occur, it’s best to document them as they are happening. If you need to take legal action, even if it’s one or two years later, then you will already have these important details recorded. Keep a journal of diligent notes specifically for this purpose.

Document Everything for Your Attorney

Make sure you record:

Dates
Time of day
Names and positions of facility staff who are involved
Names of witnesses
What happened (negligent behavior could be action or inaction)
Any harm that may have ensued

You could also take pictures, if appropriate.

An Example Journal Entry

For example, you could write down:

On September 8, 2019, Mrs. Hannah Jones, an aide at the Happy Days nursing home, told me that my mother had a fall. On that day, around 3:00 pm, my mother wanted to take a walk. Mrs. Jones said she assisted her during the 20-minute walk and then took her back to her room to rest.

About 10 minutes later, my mother apparently tried to leave the room on her own but was too weak and fell. She broke her wrist and was treated at Clarksville County Hospital by Dr. Robert Lam. It was unclear why my mother tried to leave the room without an aide. I talked with my mother’s next-door roommate, Mrs. Kathy Albertson. Mrs. Albertson said she heard my mother calling for an aide a few minutes before her fall, but no aides appeared until after her fall.

Win the Nursing Home Negligence Case

Why should you take the effort to document everything now?

If a judge gets involved, the documentation:

Helps establish your case and key witnesses (especially if the facility staff involved with the incident is no longer employed there)
Makes it easier for the elder law attorney to help you win
Relieves you from the pressure of trying to remember all the pertinent details

Having proper documentation can make the difference between winning and losing a case when legal action is required.