1. THE TBI RECOVERY PROCESS – A LEGAL PERSPECTIVE
By Stephen R. Elville, J.D., LL.M. - Elville & Associates, P.C.
2017 BIAMD Annual Conference
Radisson Hotel – North Baltimore
Timonium, Maryland
March 23, 2017

2. learning objectives of today’s presentation
To understand the immediate legal considerations for a TBI victim
To understand the general legal landscape for TBI victims and for their families
To understand how to deal with continuously changing circumstances for TBI victims and for their families during the long recovery process
learning objectives of today’s presentation

3. BRIEF OVERVIEW of today’s presentation
Estate and Incapacity Planning Fundamentals
Adult Guardianship and Substitutes for Guardianship
Right of the TBI Victim to Self- Determination
What are Families to Do?
Case Studies
BRIEF OVERVIEW of today’s presentation

4. Estate and Incapacity Planning Fundamentals
Purpose and Intention in Planning?
Why Plan?
The Problem
Understanding the Nature and Flow of Assets
Planning for Flexibility
Planning for Health Care Decision Making
Estate and Incapacity Planning Fundamentals

5. Purpose in Estate Planning

6. Why Plan? To provide certainty for loved ones
Facilitate smooth administration of estate
Minimize cost of administration
Asset protection – for spouse, children or grandchildren
Minimize or eliminate taxes
Achieve your special purposes
To attain your definition of Estate Planning
Why Plan?

7. Why Do Most Estate Plans Fail?
Attorneys and clients tend to treat estate planning as a set of documents and not as a lifetime process. This is what we call “traditional estate planning” or tep. _____ YEARS BETWEEN FOLLOW UP VISITS? For TBI Victims, failure equates to lack of incapacity planning

8. Problematic FACTS
According to the ABA, 55% of Americans have no estate plan.
Another recent survey indicated 80% of Americans age have no estate plan.
Of the 45% of Americans who have an estate plan, they tend to update their plan only once every 19 years, if at all.
Of the 45% of Americans who have an estate plan, less than 1 in 4 of those individuals or families has participated in or had exposure to client legal education.

9. PROBLEMATIC FACTS (contd.)
This means that greater than 75% of Americans who do planning (75% of the 45%) have no exposure to client legal education or follow up.
As of January 2016, the nation’s leading estate planning body, the Heckerling Institute of the University of Miami, estimated that 48% of all estate planning attorneys are doing the same things in as they did 10 years ago in 2006.

10. Advance Medical Directive
Will-Based Structure
Will
Power of Attorney
Maryland Statutory Power of Attorney
Supplemental General Power of Attorney
Advance Medical Directive
MOLST
Health Care Decision Making Worksheet

11. Advance Medical Directive
Revocable Trust-Based Structure
Revocable Living Trust
Pour-Over Will
Revocable Trust
Assign- ments
Power of Attorney
Advance Medical Directive

12. Understanding Non-Probate Transfers (Devices)
Joint ownership Beneficiary Designations Life Estate deeds transfer on death designations (tod) payable on death designations (pod) itf accounts (in trust for)

13. Will or Revocable Trust
Non-Probate Devices
Will or Revocable Trust
Joint Ownership Passes to Surviving Joint Owner
Payable on Death (POD) Passes to Beneficiary
Transfer on Death (TOD) Passes to Beneficiary
Beneficiary Designation Passes to Beneficiary
(retirement plans, annuities, life insurance)
In Trust for Accounts (ITF) Passes to Beneficiary
Life Estate Deeds Passes to Remainderman

14. Will or Revocable Trust
Best Plan in the World
Joint Ownership Surviving Joint Owner
Will or Revocable Trust
Payable on Death (POD)
Transfer on Death (TOD)
Beneficiary Designation
In Trust for Accounts (ITF)
Life Estate Deeds
Beneficiary/Remainderman
Understanding how assets are owned at
the Time of incapacity or death is THE Key
TO ESTATE AND ELDER LAW PLANNING

15. Understanding the Nuances of Incapacity Planning
Powers of attorney advance medical directive molst – medical orders for life sustaining treatment

16. Advance Medical Directive
Incapacity Planning
Powers of Attorney
Maryland Statutory Power of Attorney
Durable General Power of Attorney
Advance Medical Directive
MOLST
Healthcare Decision Making Worksheet
GUARDIANSHIP

17. Avoidance of Guardianship
YOU
Advance
Medical
Directive
Power of Attorney
Your Agent
Successor Agents
Interested Persons
Management of your Management of your Financial Affairs Health Care Affairs
Helps Avoid Guardianship Helps Avoid Guardianship Property of the Person
Surrogate Decision Making

18. WHY IS THE MARYLAND STATUTORY POWER OF ATTORNEY “NOT ENOUGH”?
Special Instructions Portion not Sufficient
”Substantially Similar” requirement too onerous and ambiguous
Enhanced fiduciary powers necessary for contemporary estate planning
Elder law concerns
Planning for loved ones with special needs

19. ENHANCING THE MARYLAND STATUTORY POWER OF ATTORNEY
UTILIZE A TWO-TIERED APPROACH – TWO POWERS OF ATTORNEY
PERSONAL FINANCIAL POWER OF ATTORNEY, ALONG WITH A GENERAL DURABLE POWER OF ATTORNEY
UTILIZE REVOCABLE TRUST POWERS IN COORDINATION WITH POWERS OF ATTORNEY
BUILDS A BROAD PLATFORM OF FLEXIBIITY
UTILIZE SPECIAL AGENT AND TRUST PROTECTOR POWERS
COUNSELING IS KEY
POTENTIAL PROBLEMS

20. UTILIZING ENHANCED POWERS (CONTINUED)
POWERs TO PROVIDE COMPANIONSHIP
Customized Further POWERS SPECIFIC TO OPERATE A BUSINESS OR BUSINESSES
Customized Further POWERs REGARDING SAFE DEPOSIT BOXES
POWERs TO FUND A FIRST PARTY SNT
Design Limitations on powers via special agent authority (or Trust Protector)

21. UTILIZING ENHANCED POWERS
POWER TO ESTABLISH REVOCABLE AND IRREVOCABLE TRUSTS
Customized POWERs TO FUND TRUSTS
Customized POWERs TO CHANGE BENEFICIARY DESIGNATIONS
POWER TO MANAGE DIGITAL ASSETS
POWER TO MANAGE GOVERNMENT BENEFITS
POWER TO Engage in A MEDICAID SPEND DOWN OF ASSETS
POWER TO CARE FOR AND DEAL WITH PETS
customized POWERs TO GIFT ASSETS
POWERs TO manage care and RECEIVE COMPENSATION

22. Effectiveness of Power of Attorney
Access to Power of Attorney
Durable General Power of Attorney ---- Effective Immediately
You (Principal) Your Attorney-in-fact ---- Power Immediate
Durable General Power of Attorney with Escrow
Springing or Contingent General Power of Attorney
You (Principal) Your Attorney-in-fact ---- Power Not Effective Until Principal’s Disability

23. ADVANCE MEDICAL DIRECTIVE
Health Care Decision Making
ADVANCE MEDICAL DIRECTIVE
Attorney General’s Form: recommended only
No required format: no limitations
Personal Input: important considerations
Personal preferences
Food, entertainment, visitations, communications, lifestyle
Appointment of agents
Effectiveness of power
End of life decisions (living will)
Flexibility options – can my agent change my decisions? (if they think another option is better?)
Organ donation options
Final arrangements (celebration of life options)

24. Medical Orders for Life Sustaining Treatment
MOLST
Medical Orders for Life Sustaining Treatment
Effective July 2013
Relates To Current Medical Condition
Health Care Decision Making Worksheet
Attorney General’s Publications

25. ADULT GUARDIANSHIP AND SUBSTITUTES FOR GUARDIANSHIP
The Most Restrictive Alternative
Process
Avoiding Pitfalls
Awareness and Due Diligence
Emotional Costs
Financial Costs
ADULT GUARDIANSHIP AND SUBSTITUTES FOR GUARDIANSHIP

26. What is guardianship?

27. Guardianship
At age 18, an individual is presumed to have legal capacity
If loved one lacks capacity to manage personal or financial affairs, a court appoints a guardian or conservator to take control over that person’s affairs
Process - described

28. What are the benefits and drawbacks to guardianship?

29. BENEFITS OF GUARDIANSHIP
Ultimate level of control
Supercedes powers of attorney and advance directives
Guardianship Order
Certainty
Accountability
Court is the ultimate guardian

30. DRAWBACKS OF GUARDIANSHIP
Expense
Loss of independence for ward (rights, etc.)
Cumbersome and time-consuming
Annual accounting
Loss of certain flexibility
Potential for conflict
Process can be challenging

31. What are the questions every family should ask before making the decision to pursue guardianship?

32. QUESTIONS (1) Is there a lesser restrictive alternative?
(2) Is guardianship really necessary?
(3) Am I prepared to see this through?
(4) Am I emotionally prepared for the guardianship process?
(5) Do I have the support of family and the physicians?

33. What are some alternatives to guardianship?

34. ALTERNATIVES TO GUARDIANSHIP
Representative Payee
Joint ownership
Power of attorney
Advance Medical Directive
Surrogate decision making
Other lesser-restrictive alternatives
Victim’s competency and high
functionality

35. Right of the TBI Victim to Self-Determination
Effect of Guardianship
Effect of Powers of Attorney and Advance Medical Directive (broadly construed)
Recovery
Medical Assistance and Waiver Programs
Termination of Guardianship?
Borderline Functionality/Capacity of the TBI Victim
Special Needs Planning
Estate Planning and Ownership of Property
Right of the TBI Victim to Self-Determination

36. Understand the Fundamentals of Estate Planning and Guardianship
Understand Fiduciary Duty (Rights and Responsibilities)
Limit Liability
Seek Professional Advice – Utilize the Planning Team
Be a Strong Advocate
Be Emotionally Prepared
Understand Special Needs Planning
Understand Medical Assistance and Waiver Programs
What Are Families to do?

37. Case studies Visiting Relative Gets Back to Life
The College Freshman Who Inspires
A “Hardest Working” Couple
Young Father Survivor is Guarded
Strong-Willed Man Refuses to Accept Defeat
An Accidental Sweetheart
Love Story – Conquering All
Case studies

38. If you have any questions whatsoever, please call Steve at:
Thank you!!
If you have any questions whatsoever, please call Steve at:
, or at