Diagnosis Dementia Webinar Series Legal and Financial Next Steps Larry Kloster, Financial Advisor & Drew Perkins, J.D., Attorney

Important Definitions Agent: The person given legal authority to make financial decisions for the person with dementia Conservator: A person appointed by the courts to make decisions on behalf of the person with dementia; referred to as the guardian in some US States Durable: When a power of attorney document is durable, it is valid even after the principal can no longer make his or her own decisions

Important Definitions Legal Capacity: The ability to understand and appreciate the consequences of one’s actions and to make rational decisions Principal: A person who, through a power of attorney document, legally chooses an individual to make decisions on his or her behalf

Government Assistance Social Security Disability Income (SSDI) – The person with dementia is unable to work in any occupation – The condition will last at least a year or is expected to result in death – Compassionate Allowance Initiative: younger- onset AD are considered eligible for SSDI as long as they meet all other criteria. Also fast-tracked to a favorable decision, which significantly shortens time it takes to start receiving benefits.

Government Assistance Supplemental Security Income (SSI) – Minimum monthly income for people who: Are age 65 or older, Are disabled or blind, and Have very limited income and assets – varies from state to state – To qualify for SSI benefits, the person with dementia must meet the Social Security Administration’s definition of disability Begin application process as quickly as possible after diagnosis. SSI benefits begin upon approval of the application

Medicaid In most states, Medicaid will pay for hospice care. If the person with dementia is eligible for SSI, he or she usually is automatically eligible for Medicaid. Those not on SSI must have minimal income and assets. The amount is determined by each state. There are specific guidelines about protecting spouses from impoverishment in determining income and asset levels. The person with dementia should be very carful about giving away assets to family members to qualify for Medicaid. Strict laws govern this area.

Case Scenario 1 Mrs. Smith, a 78-year-old, widowed female has severe dementia, is bed-bound and her 42-year-old daughter, Liz, has lived with and cared for her for the past 3 years. Mrs. Smith was recently hospitalized with pneumonia. Her other children live in the area and provide limited support. There is no medical power of attorney and no plans for her estate. Liz has come to realize that her mother’s quality of life is so poor that if it looks like she might die, no additional medical care should be given. The patient’s other children want to hold on to their mother as long as possible. Liz informs the other children that she can’t provide care to her mom anymore. Her siblings believe that she wants her mother to die, so that she can assume her mother’s property. The children have agreed to sit down with the interdisciplinary treatment team at the hospital. The team recommends the following to the family:

Case Scenario 1 Legal Next Steps Before implementing a health care decision made for a patient by a patient who can comprehend, the primary health care provider shall promptly communicate to the patient the decision made and the identity of the person who made it. An individual is presumed to have capacity to make health care decisions, to give or revoke an advance health care directive (DPA) and to designate or disqualify a surrogate unless the primary physician has certified in writing that patient lacks such capacity. Seek guardianship/conservatorship for Mrs. Smith Once guardianship is established, a guardian, with approval of the Court, may execute any appropriate advance medical directives, including a health care DPA (WS (b)) and individual instruction (WS (a)). Once conservatorship is established, conservator, with approval of the Court, can execute revocable living trust for Mrs. Smith – this could resolve the accusations of decisions made on financial gain. If it is unlikely that guardianship can be established, WS provides for the appointment of a medical surrogate (no agent or guardian can be appointed). Is Mrs. Smith able to appoint a surrogate. If no designation has been made or can be made, or the designee is not readily available, any adult child, or others listed in descending order of preference in the statute, who is “reasonable available” may act as surrogate. Health care provider is obligated to comply with decision by patient’s agent/surrogate, the same as if the patient made it, except for medically ineffective health care, for reasons of conscience or that are against a health care institution’s policy. (WS (d) & (e)). If an instruction is refused, promptly inform the patient, agent/surrogate, maintain life sustaining treatment until the patient can be transferred, and make reasonable assistance to the patient / agent to institution or provider that is willing to comply with the directive.

Case Scenario 1 Financial Next Steps All the children of Mrs. Smith should have a meeting with a Financial Advisor or Trust Officer together as soon as possible to help gain knowledge of what will happen going forward with Mrs. Smiths' estate since she has no plan in place. Look for any provisions that have been put in place prior to Mrs. Smiths' ill health that could be used as a basis for guiding the financial decisions. Make sure no money is dispersed upon the death of Mrs. Smith until all bills are paid and probate has run its course.

Case Scenario 2 Mrs. Jones 72-year-old, divorced, female has recently been receiving care and social services through your hospital. She has been diagnosed with moderate dementia that is progressing quite rapidly. Mrs. Jones has no family in the area, but does have a son, Michael, 8 hours away who is interested in helping his mom if he can. This is difficult, because Michael has a very busy work schedule and cannot directly care for his mom at his home and cannot move. He has faced the fact that his mother will soon need to move to a nursing home. You make the following recommendations to the son and patient:

Case Scenario 2 Legal Next Steps Is Mrs. Jones able to make her own health care decisions (informed consent). If not, she will need a guardian, which may require a statement of support. If so, she will need to have a health care DPA done and done quickly while she is legally competent. Will Michael be the health care agent? If so, is there a health care DPA in the file? Is there a HIPAA waiver in the file? Does Mrs. Jones have a general durable power of attorney? If not, is she competent to sign one? If she is not competent to sign one, she will need a conservator appointed. This may require a statement of support from the doctor (she is not capable of managing her own affairs). Does Mrs. Jones meet the medical necessity requirement for skilled nursing facility?

Case Scenario 2 Financial Next Steps Contact a Financial Advisor or Trust Officer to begin individualized assessment of financial needs now and in the future. What debts and assets need to be addressed now and in the future? Encourage Michael, the son, in as many meetings as possible, even if by phone. Ask if Long Term Healthcare Insurance is in place or will Medicaid/Title 19 have to be implemented? Talk with the family to see if it would make sense to pre-pay burial expenses before going on Medicaid.

Case Scenario 3 You have just finished an appointment with Mr. Hill, a75-year-old, widowed, male who has very recently received a diagnosis of mild dementia. He attends this appointment with his younger sister, who is willing to take on his future care. In order to help this patient plan for his future, you recommend that he take the following steps:

Case Scenario 3 Legal Next Steps Obtain HIPAA waiver for sister if one is not already in file Is Mr. Hill’s sister going to be making health care decisions for Mr. Hill once he can’t, if so, does Mr. Hill’s health care DPA name her as healthcare agent. Assuming he is still capable of understanding and arranging his affairs, does he have his medical and legal issues in order for the long term? o Healthcare Directives (healthcare DPA and living will) o General Durable Power of Attorney Other estate planning issues (for extended disability and death)

Case Scenario 3 Financial Next Steps Contact a Financial Advisor or Trust Officer to begin individualized assessment of financial needs now and in the future. Be sure to include family member(s) in all future meetings. Ask if there is a Power of Attorney document naming the younger sister who will be the caretaker. Ask if the sister has limited access to accounts to care for Mr. Hill Does the family know where all accounts, policies, and legal documents are located? What debts and assets need to be addressed now and in the future?

Case Scenario 4 You are a health professional who has just seen Mrs. Stone, a married, 63-year-old, female patient who is showing signs of the beginning stage of dementia. You are going to refer for a full assessment, which will potentially lead to a formal diagnosis. Before the patient attends the assessment appointment you should recommend that that she does the following things:

Case Scenario 4 Legal Next Steps Does a health care power of attorney exist, if so promptly record into patient’s health care record. Assuming she is still capable of understanding and arranging her affairs, does she have her medical and legal issues in order for the long term? o Healthcare Directives (healthcare DPA and living will) o General Durable Power of Attorney o Other estate planning issues (for extended disability and death) If not health care DPA / directive exists, does the patient want to appoint a surrogate. Healthcare financing, can pay from own resources or will Medicaid assistance be necessary in the long term?

Case Scenario 4 Financial Next Steps Contact a Financial Advisor or Trust Officer to begin individualized assessment of financial needs now and in the future. Be sure to include family member(s) in all future meetings. Is there a power of attorney document in place? Does the family know where all accounts, polices, and legal documents are located? Any Long Term Care insurance? Who will be responsible for all future payments? What debts and assets need to be addressed now and in the future?

Conclusion Or Perkins Law PC In Casper, WY