Category Archives: Estate Planning Issues

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.

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 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

The first step for families to take is to locate these estate planning documents now.
Then, make sure you have complete copies of all of the relevant documents.
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.
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 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.

Photocopy of Last Will and Testament

What happens if I can’t find my dad’s original last will and testament? Can I use a photocopy of his last will and testament?

There are problems in using a copy of a last will and testament. Prior to about ten years ago, the answer was you could not submit a photocopy of one’s last will and testament. But, tht changed in 2009. Maryland Code Ann. Est. & Trust Sec. 5-802 allows one to submit a photocopy of the decedent’s last will and testament under certain circumstances.

What are the circumstances to submit a photocopy of the last will and testament?

The decedent heirs and legatees must provide their written consent that they accept the photocopy to be admitted to probate in lieu of the original. It is important to note that “heirs” and “legatees” may be different people. Heirs are individuals that would inherit if there was no last will and testament. Legatees, on the other hand, are those individuals that are specifically named as beneficiaries in the last will and testament.

Here is an example of the problem in getting all to consent

Assume that dad’s original last will and testament could not be found. In the photocopy of this last will and testament, he leaves everything to his two daughters who care for him in the last five years of his life. His son, however, was left out of the last will and testament. In this example, assuming mom has passed, the two daughters and son are the intestate “heirs” while the two daughters are the named beneficaireis – i.e. legatees. If the two daughters want to submit the photocopy of the last will and testament, they will need to obtain the signature of their brother. But, of course in this example, thier brother may not want to sign the consent because if he does, he inherits nothing in the new last will and testamant.

Another Win! – Will Contest

We had another will contest win. Our client was gracious enough to send us a card expressing her thanks. This is what she had to say:

“Thank all of you for the way you handled our case. You guys are wonderful. Along with being very professional, you showed us such compassion. You guys went over and beyond to make sure the wrong to us was made right. We cannot thank you enough. We will highly recommend you. Thank God for all of you. Sincerely, B.J.

P.S. Wow!!! What a check (smile).”

Inherited IRA and 401(k)s

Does a Surviving Spouse have a Right to the Deceased Spouse’s 401(k) or IRA?

When choosing a beneficiary for a retirement plan, it is important to understand how your spouse will be treated under the plan. Surviving spouses are treated differently under 401(k)s and individual retirement accounts (IRAs). While a 401(k) provides protections for a surviving spouse, an IRA does not.

Because the 401(k) is an employee-based retirement system, it is governed by a federal law, the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA, a surviving spouse is usually the automatic beneficiary of a retirement plan (There may be some exceptions. For example, the spouse may have to be married to the employee for a certain amount of time). The spouse must consent in writing if the employee wishes to name someone else as the beneficiary.

IRAs, on the other hand, are not governed by ERISA, so they do not include the same protections for spouses. This is true even if a 401(k) is rolled into an IRA. In a recent case, Charles Schwab v. Debickero (U.S. Ct. App., 9th Cir., No. 07-15261, Jan. 22, 2010) a husband rolled his 401(k) into an IRA with Charles Schwab & Company after he retired. He named his children as the IRA’s beneficiaries. After he died, his wife claimed that she was entitled to the account funds as his surviving spouse. She argued that because her husband rolled his 401(k) into the IRA, she should receive the same protections that the 401(k) gave her. The court disagreed, finding that the IRAs are excluded from ERISA coverage even if the funds originated in a 401(k).

If you have an IRA and want your spouse to be its beneficiary, you have to specifically name the spouse as a beneficiary. If you have a 401(k) and want your spouse to be the beneficiary, you should still fill out a beneficiary designation form, naming your spouse. And if you roll it over into an IRA, make sure you fill out a new beneficiary designation form. If you want someone other than your spouse to be the 401(k)’s beneficiary, you will need the spouse’s consent in writing, as noted above.

Whether you have a 401(k) or an IRA, it is important to regularly check your beneficiary designations to ensure they are current.

from www.elderlawanswer.com