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Will You End Up Like Terri Schiavo or in Court needing a Guardian & Conservator? | Massachusetts Elder Law Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Jun 28, 2012 8:48:00 AM


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You may have heard that guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become incapacitated. Also, we need trustworthy and responsible family members to assist us, if we need help.

As attorneys we are increasingly running into the following situations:

1.      Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in.  Although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the documents in place to empower these helpers as their agents. 

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If you need information and help to assist a family member with dementia or Alzheimer’s visit www.BostonMemoryLawyer.com where you will be given free online access to the Complete Alzheimer’s Resource Kit, a $197 Value. 

2.      Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.  They may also be concerned about changes in the law, changes in their health, and changes in their financial situation.  It is good practice to review your financial and legal documents on a periodic basis.  To help clients keep up with changing situations we created the Life Time Protection Program, which provides clients with a yearly review, updates at no cost due to changes in the law, and the ability to contact our office with any questions or concerns they may encounter.  We help people make sure their critical health care proxy, HIPPA document, and list of emergency contacts are not only up to date, but available 24/7, anywhere in the world AND we pay for our clients to have access to this service because we believe it is so important. 

With important medical privacy laws such as HIPPA becoming more strictly enforced by hospitals and medical facilities, making sure you have the right authorization is more critical than ever.  Without proper authorization, your loved ones, including your spouse, children, and parents, may not be able to assist you when you need it most.  If you don’t have the proper authorization you may not be able to help loved ones when they need you.  Because of the strictness of HIPPA, it is more critical than ever that you have current and effective health care proxies, HIPPA release forms, and durable powers of attorney.  Clients should contact our office in order to review and update their documents over the mail or to schedule an appointment.

Crisis Situations

Another increasingly common situation is where seniors do not have agent-delegation planning in place and end up in a medical or living condition crisis where they are putting themselves or others at risk. Loyal family members and friends are very concerned, but nobody has the power to assist once they find out.  No one should end up like Terri Schiavo.  Ms. Schiavo did not have complete health care documents spelling out her wishes in the event of her incapacity or irreversible terminal illness.  Her husband and parents waged war through years and years of heartfelt legal battles…not to mention heartbreak, tears and hard feelings.  If you do not have the appropriate healthcare and disability documents your loved ones may be subjected to the same hardships as Terri Schiavo’s family in the event of your incapacitaty. 

Alternatively, seniors may have excellent voluntary delegation planning in place, but the seniors are noncompliant about what they now need to do for their own safety and care. For example, they may need to live in an assisted living community or nursing home, but they voluntarily check themselves out and depart. They are free to make their own decisions, even though imprudent or unsafe, so they can walk right out and put themselves in danger. If they have access to an automobile, they put the general public at risk as well.  If you or a parent would like to learn more about senior living options please contact our office at (781) 237-2815 and request information about Life Care Planning and Senior Living Options.  We have helped clients find the living situation that is right for them, and get the care they need without sacrificing their hard earned life savings to pay for it. 

Adult Protective Services

In emergencies, where the seniors are unwilling to cooperate and their intransigence is putting themselves or others at risk, often the first call should be to Aging Service Access Point (ASAP). ASAP is a state agency, typically within the department of "human services" or "elder services". ASAP generally will appoint a social worker or staff person to investigate, perhaps with local police in order to gain access to the senior and entry into the home.

Seeking Court Protection

Whether or not ASAP gets involved, and whether or not the case is an emergency or just a situation where the senior needs help and is not willing or able to sign voluntary agent-delegation documents, the solution is often a guardianship and/or conservatorship over the senior, if he or she meets the applicable standards of incapacity.

Guardianship

elder law, alzheimer's disease lawyer, estate planning attorneyTerminology varies from state to state, but in general, guardianship (sometimes called "guardianship of the person") applies to probate court appointment of a fiduciary ("guardian") to make decisions in regard to the protected person's personal care.  A guardian generally does not have control of the protected person's finances, although state law or the specific terms of the guardianship may authorize the guardian to hold small amounts of the protected person's funds if no conservator has been appointed and the protected person does not have a durable power of attorney.

Conservatorship

Conservatorship refers to probate court appointment of a fiduciary ("conservator") to administer the finances of the protected person. Conservatorship is much like trusteeship, although the powers of and restrictions on the conservator are defined by statute and regulation, rather than a voluntary trust agreement or trust declaration, and are typically are much less flexible than the powers authorized for trustees. Conservatorships are also analogous to durable powers of attorney. However, one of the key differences between conservatorships, trusts and durable powers of attorney is that conservatorships are court-supervised and directly accountable to the court. It is common for conservators to be required by state law and regulations to account annually to the probate court. Such accounting needs to be accurate to the penny.  

A conservator does not have plenary power to do whatever financial transactions he or she feels are warranted. For example, a conservator needs specific court authorization to sell real estate in most states.

Imposing Minimum Restrictions

For a guardian and/or conservator of an adult, the probate code generally imposes a standard that the protected person's rights are to be removed to the minimum degree necessary to protect him or her. This is because the removal of personal rights and liberty by the court is analogous to a civil form of imprisonment. Where a protected person is capable of making some kinds of decisions safely and prudently in regard to his or her living conditions, care, or finances, the theory is that his or her rights to make such decisions should be preserved as long as possible. On a practical level, keeping seniors involved in their care and financial decisions also helps to keep them engaged with life, reality, and higher mental functions, so this legal construct is very consistent with practical experience in care giving for seniors who are in a process of deteriorating mental capacity. There is a growing movement nationwide to maximize decision-making by adults who are under guardianship and/or conservatorship.

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Although attorneys correctly advise clients to plan to avoid unnecessary guardianship and conservatorship, there are many situations where a guardianship and/or conservatorship is appropriate and very beneficial. Court supervision in difficult cases can be beneficial to impose financial accountability and to bring about sound decisions for the care of a protected person. Under modern guardianship and conservatorship theory, courts impose the minimum restrictions on protected persons that are needed to accomplish the personal safety and prudent financial management that are the goals of these court-supervised protective measures.

Estate Tax Increase Pending

Since Massachusetts continues to tax all estates over $1 million, it is important to make sure your planning is current so that a completely avoidable estate tax is not triggered at the first death due to the TEMPORARY extension of the Bush estate tax law.  Please note however, that the temporary extension is set to expire at the end of 2012.  As a result, without congressional action a federal estate tax of up to 50% will also apply to all estates above $1 million after January 1, 2013.

Review & Update to Maintain Control of Financial & Health Care Decisions & Reduce Taxes

For clients, once we receive your information we will contact you to arrange for updates to be done via mail or to schedule an appointment to come in and to review your situation in person.  The entire process is quick and painless and you will have the peace of mind of know you are prepared for 2012 and beyond, even with the federal estate tax increase scheduled for January 1, 2013.  

Our team’s ultimate objective is to help you and your family to accomplish your estate planning and asset protection goals.  If you’ve recently signed your estate planning documents you are included in the Lifetime Protection Program at no cost for the first year.  If you have a friend or family member who would like our help please let us know!  If your friend or family member becomes a client you get One FREE YEAR Membership in the Lifetime Protection Program. 

If you have any questions or would like to discuss questions raised in this newsletter please feel free to contact our office. 

We encourage you to attend a free educational workshop hosted at the Estate Planning & Asset Protection Resource Center in order to learn more about how a review by our dedicated team of professionals can help identify problems in your existing planning as well as where opportunities for improvement may exist.  You CAN create a plan to protect your spouse, home, and life savings.  To register call (800) 964-4295 (24/7).

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Tags: long term care, Alzheimer's Disease, Estate Planning, Lifetime Protection Program, elder care journey, durable power of attorney, Health Care, health care proxy, Elder Law, HIPAA, seniors, non-family caregivers