Death of a Guardian
November 28, 2011
Judy and her husband, Bob, had been appointed guardians for their son, Bill, years ago when he turned 18. Bill suffered a brain injury during his delivery at birth and had the mental capacity of an 8 year old. Eventually, Judy and Bob placed Bill in a group home where he was well cared for. Bob passed away 10 years ago but Judy continued to serve as sole guardian. As her mental and physical health began to decline, however, she knew that she needed to find an alternate. But then she died.
So, what happens when a guardian dies? Another one needs to be appointed. But that can take time, especially if there is no obvious successor. In Judy’s case there wasn’t. She didn’t have any suitable family members to serve and struggled with the decision. In fact, she made the worst decision she could have, none at all.
When a medical emergency occurred with Bill after she died, that was a real problem because the non-profit organization caring for him didn’t have the legal authority to make medical decisions. On the financial side of things, no one had access to the funds set aside for Bill, to be able to meet his care needs.
Luckily, Bill’s medical crisis turned out to be not so serious but getting a substitute guardian in place took time. Judy had discussed with the organization the possibility of having them serve but she never put anything into motion. So they weren’t sure if they should make application or not. When there isn’t an obvious choice, time is wasted. It isn’t clear who should take action first so everyone waits for someone else to step up.
In Judy’s case, her legal and financial advisors helped out. Eventually, the organization did petition the court to be appointed and, as I said, luckily Bill didn’t have a medical emergency during the 4 months it took to complete the entire process. And while it appears to be the best situation possible for Bill, Judy left it to chance that all would work out well.
The lesson is clear. As we see many parents with adult disabled children age and pass away, it highlights the need for a succession plan before the parent dies. Judy would have been best served if she had chosen a guardian and petitioned the court before she died. The transition would have been much safer and smoother for her son, Bill.
Harry’s Law – Hollywood and Elder Law Collide (Part 2)
November 21, 2011
So, last week we were talking about Gloria and Abe, the subject of an elder law plot line on the NBC drama, Harry’s Law. Gloria wants to divorce Abe because she can’t afford the long term care that Abe needs without selling their house and leaving her destitute. A discussion amongst the lawyers in the firm ensues about the ethics of a plan to qualify for Medicaid, but as is so often the case with television and movies, it’s not that simple and the writers haven’t gotten the law right.
We learn that the assets Gloria is trying to protect include a house and a car. The writers do get something right. Medicaid will likely scrutinize a divorce settlement that leaves all the assets to the healthy spouse. But, if it is true that those are the only assets, any elder law attorney knows that Gloria can keep them under Medicaid spousal protection laws. A divorce is unnecessary.
Let’s change the facts a bit. Even if the couple have some money in the bank, Gloria can keep some or possible all of it, or at least spend it in a way that is more beneficial to her. For example, if they have an additional $25,000 in assets she can keep almost $21,000 of it under Community Spouse Resource Allowance Rules. The rest can be applied, for example, to a prepaid irrevocable funeral for Abe.
There are other possibilities, although the writers didn’t tell us enough about the couple to be able to say for sure. Is Abe a war time veteran? If so, then Gloria may be able to qualify for nearly $2000 a month of tax free income to help pay for his care under the VA’s Aid and Attendance program.
And what about the discussion about the ethics of a divorce? We learn that Gloria has been unhappy in her marriage for years. Medicaid isn’t her sole motivation so would she really be committing fraud? Is it true that, as one of the attorneys in the firm says, her failure to plan is bankrupting the country? We don’t know enough about how Gloria and Abe got to this point – how much money they had over their marriage and how they spent it – to be able to answer that question. Maybe this is all they ever had in their lifetime. Their house is their nest egg so what exactly did they do wrong?
It is unfair and inaccurate to put the entire blame on the backs of individual Americans. The problem of long term care is much more complicated than that. The cost keeps climbing exponentially and we are living longer than ever before. How were Gloria and Abe – or any of us for that matter – supposed to plan for that?
It’s 9:50 and Harry and her attorneys have only a few minutes to wrap up Gloria’s problem into a nice neat solution. After all, they’ve got to get through the credits and at least 3 commercials before the next show in NBC’s lineup at 10p. In typical TV fashion, Harry’s partner Tommy says he will pay for Abe’s care, even 24 hour care. At an average cost of $120,000 per year that’s mighty generous of Tommy. I doubt he realizes what he has just offered.
That’s clearly not a realistic solution, but the show’s writers can get off the hook that way. They can write it anyway they want and in TV land you’ve got to have a nice neat ending. It’s just that, in the real world, you can’t script it that easily. It takes much forethought and planning.
If I was writing the ending I would have sent Gloria to an elder law attorney to help guide her through what will surely be the most challenging time in hers and Abe’s life. There are solutions. She just has to get the right advice. Who knows? Maybe that can lead to a spin off series for NBC about an elder law firm.
“Harry’s Law” – Hollywood and Elder Law Collide
November 14, 2011
Over the years, not surprisingly, there have been many televisions series that focus on the legal profession. The stories are interesting, entertaining and often emotional. LA Law was a popular show back when I was in law school. Currently, Kathy Bates stars in Harry’s Law, which focuses on Harriet “Harry”: Korn and the other lawyers in her private law firm. Last week, one of the plot lines focused on an aspect of elder law. While it may make for “must see TV”, the episode leaves much to be desired when it comes to accuracy.
An elderly married couple, Gloria and Abe, meet with one of the lawyers in the firm. Gloria explains that Abe has Alzheimer’s and that he needs full time care which they can’t afford without selling the house. She wants a divorce from Abe, allowing her to keep their assets and permitting him to qualify for Medicaid.
Much of the discussion amongst the lawyers in the firm focuses on the ethical issues. Would Gloria be committing fraud? Would Medicaid challenge the divorce settlement? Should the country help Gloria and Abe (and others) who failed to plan for long term care?
Later in the episode we learn that Medicaid isn’t Gloria’s sole motivation for seeking divorce. She has been unhappy for much of their 40 year marriage. The stress of Abe’s illness has just aggravated the situation.
It all makes for great drama, but as so often happens with television and movies, in an effort to make the story “more sexy” and in the interests of time (after all, the show is only an hour and there is more than one plot line in each show) the truth sometimes falls by the wayside. Next week I’ll share with you where the writers went wrong and why you don’t want to get your elder law advice from television.
Maxwell Smart with Alzheimers?
November 7, 2011
I was a big fan of Get Smart, the TV show from the 1960’s that aired in reruns through the 1980’s. The main characters were two government secret agents. Actor Don Adams played Agent 86 and his female partner, Agent 99, was played by Barbara Feldon. (Steve Carell and Anne Hathaway starred in a recent movie version.) There were many running gags and gadgets in the show. One of the more memorable was the shoe phone.
I was reminded of the show when I saw a recent announcement that the first shoes with GPS tracking will be sold in the United States. No, they aren’t being made for government agents but rather for seniors suffering from Alzheimer’s Disease. Wandering is a problem for many Alzheimer’s patients who then get lost when they can’t remember their way home. A GPS tracking system in their shoe can make it easy for family and police to find them.
While bracelets and pendants can do the same thing, seniors often won’t wear one because they don’t recognize it as being theirs so they remove it. By placing the GPS in the heel of the shoe, the senior won’t know it’s there. As the number of Americans afflicted with Alzheimer’s is expected quadruple in the next 20 years the costs to society will be many. Technology will play a big role in solving this growing problem.
Interestingly, the original idea was to create the shoe for long distance runners and children. A college professor who was an advisor to the project, convinced the company which manufactures them that it would be best suited to seniors with memory issues.
Who knows whether anyone had Maxwell Smart’s shoe phone in mind when the idea of the GPS shoe was first discussed? But, it’s a pretty neat idea which just may save lives and reduce a lot of stress for families concerned for their loved ones’ safety.
