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What is a Health Care Directive?

Prior to 1989, Minnesotans were unable to make statutorily supported decisions surrounding their health care upon incapacitation. The Minnesota legislature, in 1989, passed Chapter 145B, which authorized the use of Living Wills and laid the groundwork for our current legal framework. Today, Minnesota recognizes not only the Living Wills of Chapter 145B, but also the Health Care Directives of Chapter 145C.

What is a Health Care Directive?
A Health Care Directive is a document that sets forth your wishes upon your incapacity and even death. While you are still fully capable and healthy, this document does not affect any situations regarding your ability to make decisions surrounding your personal health care. However, upon your incapacity it does take effect and can direct the person you appoint to make decisions for you (if you regain capacity, it then loses its power again). An example would be if you were in an accident that left you breathing or eating via automated life support. Doctors indicate to your designated health care agent that you have an extremely limited chance of recovery. In this sad hypothetical, your health care agent could look to your Health Care Directive and see that where you could not eat or breathe on your own and had a remote chance of recovery, your desire was to be taken off of life support systems and be left to pass away naturally. Health Care Directives can also include instructions on things like preferred treatment options, Do Not Resuscitate orders, cremation and burial arrangements, organ donation, and virtually any other cultural, religious, or personal concerns that need to be addressed in end-of-life situations.

What happens if I do not have a Health Care Directive?
If you do not have a Health Care Directive, the health care provider lacks a point of contact for decision-making. After age 18, your parents are not going to be able to step in and make crucial decisions. In many cases, the hospital staff will decide who should speak for you. In specifically challenging situations, harsh disagreement among family members may arise as to treatment, certain surgeries, life support strategies, and end-of-life arrangements. Here, the court may need to step in and appoint a proxy. Whether this court-appointed individual is the person whom the patient desired to be their decision maker will be very unclear. Using the court system during such an urgent context also takes an unnecessary amount of time and energy that would be saved through the simple articulations present in a Health Care Directive.

How often should I update my Health Care Directive?
While there is no mandatory period of time to update or review a HCD, there is a golden rule of sorts that has been endorsed by the ABA Commission on Law and Aging. This rule has been deemed the “Five D’s.” As a recommendation, a Health Care Directive (and most key estate planning documents for that matter) should be reviewed:

1) When there is a Death in the family
2) When a Divorce occurs
3) When a new Diagnosis is received
4) When a serious Decline in health is experienced
5) Every Decade

For more information on Health Care Directives, be sure to consult with an Elder Law Attorney in your area who understands the requirements of your local laws. Health Care Directives do have varying requirements in different states as to what they are allowed to control and the form/content that is required for them to be effective.

Estate Planning at 18: Why it is never too early

It is your eighteenth birthday, making you legally an adult in Minnesota. This means you can make your own decisions and finally take control of your destiny, right? As your first act as a responsible adult you… create a Health Care Directive?

Prior to age 18, your legal guardian (usually your parents) served as the medical decision-maker. If you were involved in an accident and became unconscious or incapacitated, your guardian was able to speak to doctors, obtain information, and decide upon treatment for you. Upon turning 18, that magical title of “guardian” evaporates, leaving those decisions to you alone. If you can’t speak on your own behalf, who can? This is where a Health Care Directive or “Living-Will” comes into play and why it is never too early to be thinking about what choices you would make if certain situations arose and whom you could trust to carry out your wishes.

Why I decided to complete a Health Care Directive in my 20’s
Prior to attending law school, I had never heard of a Health Care Directive. I never thought about becoming permanently comatose or dying in an accident. Death only happened with the elderly or the extremely careless, not me. As I transitioned from undergrad to graduate school, I lost a high school classmate in a tragic car accident (a leading cause of death among teenagers). Growing up in a small suburb, I was shocked that this was the third classmate I had lost in the less than five years since our graduation. Whether it was a freak occurrence, military service, or a car accident, the terrible experiences my peers’ families went through forced me to consider my own mortality.

As a twenty-three year old, I created a Health Care Directive through a volunteer opportunity with the law school I currently attend. It was incredibly challenging to walk through the questions and examine my beliefs on certain issues. Would I prefer to be buried or cremated? Was there a specific church or certain individuals I wanted involved in my funeral arrangements? Did I want to donate my organs or perhaps direct them to a specific research university like my alma-matter? Were there any treatments that I wanted to refuse regardless of whether they may mean life or death?

The most difficult decision for me was actually selecting my health care agent. I was torn between nominating my mother or my father, or even leaving the decision to a more removed relative or friend. In the end, I nominated my father as my primary agent and my mother as his successor. It was very hard to tell them this without hurting my mother’s feelings. Deep down, I knew that if I was in a comatose state that my mother would spend the rest of her life waiting for a miracle recovery. After reflecting on these concepts on my own, I had a conversation with my parents about our views on death and dying. Like most families with young adult children, this was a topic that we had never discussed previously.

Overall, the most important part of creating a Health Care Directive is having the hard conversations with your loved ones about your wishes upon death or incapacitation. They may never want to think about losing you, but the reality is that there will come a time when we are faced with losing someone unexpectedly. A Health Care Directive is a gift that you give to others. This gift gives your loved ones not only the right to make decisions on your behalf but also guides them through this process allowing them to direct care based upon your wishes.

For more information on Health Care Directives, consult with an Elder Law Attorney in your area. Health Care Directives do have varying requirements in different states. For additional information, please review Maser, Amundson, Boggio & Hendricks blog post on Health Care Directives.

Why not use online estate planning tools instead of an Elder Law Attorney?

I can bank, shop, and communicate from behind the screen of a computer or cell phone… Why can’t I complete my estate planning through a do-it-yourself online platform? While your preferred search engine might be where your estate planning hunt begins, don’t let a keyboard be where it ends.

The incredible amount of information that the internet brings to one’s fingertips has substantially impacted the practice of law. The area of Elder Law is no exception, but it holds its own unique technological pitfalls. Many online providers of legal services offer basic Wills, Health Care Directives, and even Power of Attorney forms. Unfortunately, in the area of estate planning/elder law, the “one size fits all” resource can be misleading. Often, these documents poorly reflect the individual’s wishes or even conflict with laws that completely invalidate them. Outside of the language of the documents themselves, there are very specific rules and formal processes that guide how to make such documents effective. Even a draft covering the simplest of situations may have unintended consequences.

Many people cite the cost of legal advice as a reason for skipping a visit to their Elder Law Attorney. Sadly, in many of these situations, that decision results in a more costly outcome. Estate planning can be complex and difficult to understand without a legal education. Residuary clauses, attestation, and probate are foreign terminology to most of us. If mistakes are made, significant portions of documents are missing, or key terms are ambiguous, the cost of clarification can be far greater than the cost of an attorney. This monetary cost does not bring into account the frustration, time, and emotional anguish that court proceedings can create. Professionally drafted instruments are designed to offer clarity and take the burden of such situations off your families’ shoulders.

An attorney can be helpful in avoiding these problems in a multitude of ways. Foremost, they help by asking questions and gaining information that you may not actually know is important in regard to drafting a Will, Health Care Directive, or Power of Attorney. Attorneys are also able to explain the complex concepts and unique language in ways that can aid in making decisions that fully reflect your wishes. With that increased understanding, attorneys can then tailor the document language in a manner that best sets out your wishes while remaining compliant with state law.

DIY projects are fantastic for unique decorations and home improvement tasks, but your estate planning should be trusted to an experienced Elder Law Attorney.

Why do I need a Will?

Did you know that almost half of people ages fifty-five (55) to sixty-four (64) pass away without executing a Will? The younger the individual is, the less likely they are to have thought about planning for the end of their lives. While no one likes to think about death, it is important to move beyond the discomfort and avoid procrastination. The hesitation to address such a morbid topic is understandable, but failing to do so can be costly to your grieving family during a time where clarity and certainty offer immense comfort.

What happens if I don’t have a Will?
Without a Will, something called intestate succession occurs. The court will determine which relatives inherit what amounts through a default legal analysis. This analysis walks through your family tree, allocating value determined by your legal relationship to the person such as a living spouse, living children, and even your parents. If no immediate relatives are living, intestacy looks more broadly at your family tree to determine your closest kin. Upon exhausting the family tree without finding living heirs, your estate can be given to the state through a process called escheat. Having a Will allows you to alter that process and gain something very important: control.

What can I control through a Will?
A Will does several important things, including naming a person to handle your affairs after you pass away (an executor or personal representative), designating who will inherit what, and also providing guardians for any minor children you may leave behind. Unlike the intestacy process above, you can name specific individuals to inherit under your will such as relatives, friends, churches, schools, or charities. A Will does not transfer or control anything while you are living. Once a Will is executed it does not expire, however, that does not mean all Wills are permanent. A Will may be revoked through specific actions at any time and can also be changed with subsequent additions called codicils.

When should you consider creating, reviewing, or changing a Will?
Reasons to consider or revisit an estate plan incudes, but are not limited to:

  • Marriage
  • Having children
  • Receiving an inheritance or large sum of money
  • Divorce or legal separation
  • Military service
  • Extended periods of traveling
  • A serious health diagnosis
  • Owning a family business
  • Approaching retirement
  • Owning a pet or difficult to value asset

*Once you have created a Will and/or a holistic estate plan, it is a good idea to review your personal/family situation every five years at a minimum, regardless of the above occurrences.

Do Wills help my estate avoid probate?
A common misconception about Wills is that they are drafted to avoid the probate process. That is completely false. Wills are drafted to avoid intestacy, and actually are part of the probate process. Probate consists of identifying individually owned assets that have not already been distributed and determining what the Will instructs to be done with these assets. This is not some daunting, overly-complex procedure to be feared, as long as the Will is clear and appropriately disposes of your property. A typical probate in Minnesota may last anywhere from nine to eighteen months, with variations related to complexity, conflict, and court scheduling. The Will acts to speed that process up and limit probate costs.

Consider speaking with an Elder Law Attorney to explore and better understand your options during the Will creation and probate process. Having a clear understanding of the law and the requirements involved in creating a Will are not only crucial to having your final wishes upheld, but easing your family through one of the most stressful experiences they will ever encounter.

What role do I play as a health care proxy?

A loved one, maybe a parent, spouse, or friend, mentioned that they are preparing a Health Care Directive with the hope that you would be willing to play the role of health care proxy. Initially, you should take some time to consider what being a proxy entails and how comfortable you are serving in such a capacity. This is not a task not to be taken lightly and often only becomes necessary in the direst of circumstances. The objective of this article is to offer guidance as you consider what it means to serve as someone’s health care proxy.

Consider this scenario. You are a health care proxy (sometimes called a health care power of attorney, agent, representative or surrogate) and you are called to action because the person who appointed you remains hospitalized and unconscious after a serious accident. Eventual recovery is probable with immediate treatment, but the doctor needs someone to choose between two procedures. That someone is you. The first option is a very invasive surgical procedure that may allow for a more rapid and complete recovery. It will require the person to be transferred to a specialized hospital away from family. The second option is also surgical, but tends to be more commonly undertaken and far less likely to experience complications. This surgery can be completed where the patient is currently hospitalized, but it has a lengthier period of recovery. The doctor shares with you that this second surgery is known to offer a lower likelihood of full recovery. What do you elect to do on behalf of your comatose friend?

The health care proxy’s job is first and foremost to be the patient’s advocate. The proxy must speak with doctors about the various treatment options, consider medical records and history, and ultimately make decisions in the best interests of the patient. A health care proxy is designed to make the same decisions that the person receiving treatment would if they could communicate their wishes directly to the health care provider. This is why it is so important for the proxy and the principal to communicate prior to the principal’s incapacity.

Undertaking the role of health care proxy probably sounds like a complicated and stress-filled process. Of course, any situation that requires the proxy to take action is going to be challenging, but that makes the proxy’s position ever more important. It is absolutely crucial to have conversations about the principal’s beliefs and values prior to agreeing to serve as a health care proxy. If an Health Care Directive exists, the health care proxy should review the document and ask the principal questions. Effective advocacy requires a working knowledge of the way in which the principal would have weighed the pros and cons of a hypothetical medical situation. As a nominating principal and a potential health care proxy, have a detailed conversation by considering multiple scenarios, talking about your preferences, and creating a detailed understanding that both parties feel “comfortable” executing if tragedy strikes.

Financial Elder Abuse

According to a report jointly sponsored by the National Committee for the Prevention of Elder Abuse, Virginia Tech University, and MetLife, there is a collective loss of $2.9 billion dollars each year among victims of financial elder abuse. This number is growing rapidly and the act of financial elder abuse is expected to be largely underreported. In reality, $2.9 billion may actually represent a fraction of the value that is being lost by our seniors each year.

Financial elder abuse consists of many different actions, including internet and telephone scams, insurance fraud, physical theft, and coerced, pressured, or deceptive transactions. Minn. Stat. § 609.2335 sets forth that any breach of fiduciary duty, use of property for something other than the benefit of the vulnerable adult, failure to use property for the benefit of the vulnerable adult, or depriving a vulnerable adult of financial resources is considered financial exploitation.

The report also explains that even though all senior demographics have been targeted, senior women are twice as likely to encounter the abuse as men. Victims, regardless of gender, often share an element of vulnerability created by regular isolation, cognitive challenges, and some level of need for assistance with tasks pertaining to home maintenance, health care, and finances. These vulnerabilities present an opportunity for the abuser.

Though many actions of financial elder abuse are undertaken by strangers, a large class of these crimes occurs among family members. Statistics vary by region, but various reports state that seventy-five to ninety percent of financial elder abuse is undertaken by family members, close friends, and caregivers. The role these individuals play in the life of the senior often make the abuse far more difficult to discern.

Red flags that someone who suspects financial abuse can look for include:

  • Unpaid bills
  • Changes in legal documents (Power of Attorney)
  • Changes in spending patterns
  • Changes in attorney or financial planners
  • Changes in bank accounts
  • Missing property
  • Transfers of large sums of money
  • A fear, anxiety, or unwillingness to discuss finances
  • Excessive involvement in the senior’s finances by a singular party

Financial elder abuse is reaching epidemic levels just in time for the Baby Boomer generation to reach retirement age. In order to protect yourselves and the seniors in your life, please consider reviewing your existing financial/estate planning strategies. Be sure to create a clearly defined plan, and then have conversations so that all family members know about and understand your intentions. The most important thing a senior can do is to PLAN and properly PREPARE for their future dependence with a trusted community of advisors.

IF YOU EXPECT ELDER ABUSE OF ANY KIND, please contact Minnesota’s Adult Abuse Reporting Center at 1-844-880-1574.  For more information, visit the National Center on Elder Abuse website at https://ncea.acl.gov/.

What is Long-Term Care Planning?

The news has covered the ballooning costs of health care at great length. In fact, a recent study shows the average American couple pays $265,000 in health care premiums (not to mention out of pocket costs) after age 65 (www.hvsfinancial.com/PublicFiles/Data_Release.pdf). That is A LOT to most, if not all people!

Part of the challenge of growing older is not being able to predict potential changes in our health. This is why long-term care (LTC) planning is so important. LTC planning focuses on planning ahead for care needs and associated costs. With the baby boomer generation just here, long-term care costs are an area of concern for our society. A USA Today article in 2015 highlighted that over eight million Americans required the use of long-term care services in 2014 (http://www.usatoday.com/story/news/nation/2013/12/12/long-term-care-elderly-alzheimers/3990853/). Medicare’s website additionally sets forth the statistic that 40% of people who reach the age of 65 will eventually need to reside in a nursing home. Needless to say, long-term care is headed towards exponential growth and as a result should be on every family’s radar.

Long-term care refers to the services provided by at least one person (either a medical professional or a layperson such as a spouse or child caregiver) to individuals in need of help with activities like walking, cooking, doing laundry, rehabbing an injury, and traveling. Long-term care may be temporary or continuous. For example, someone may receive temporary long-term care while recovering from a fall, whereas continuous LTC is necessary for a person moving into assisted living or a nursing home due to late stage Alzheimer’s or dementia.

Here are a few things to keep in mind about long-term care: First, if you think you can delay or avoid long-term care planning because the government provides Medicare and Medicaid, think again. Medicare covers a limited amount of long-term care (up to one-hundred days), and Medicaid will be available only after significant depletion of assets. In fact, the overwhelming majority of medical expenses over the course of retirement are paid through private insurance or directly out-of-pocket. Second, if you plan on joining the roughly three-quarters (75%) of people who provide long-term care via unpaid family member care, be aware of the demands that it places on the family member. As health needs become more complex, the time investment and stress increases, which may lead to caregiver health issues and lower quality of care. Evidence of this stress can be seen in spouses who provide care for each other, because there is a 67% higher chance that the caregiver spouse will predecease the spouse in need of care.

There is good news for us here in Minnesota. A recent study by AARP ranked Minnesota as the best (yes, #1!) provider of LTC in the country in terms of quality and availability (http://www.longtermscorecard.org/). While cost is still a concern, this is a positive thing to note for families, seniors, caregivers and Elder Law Attorneys that call Minnesota home.

As you can see, it is crucial to meet with an Elder Law Attorney in your state about long-term care planning. The attorney will examine your personal and financial situation and advise you on the best ways to manage your assets in preparation for potential changes to your health status. Whether it means purchasing long-term care insurance before you retire, legally spending down for Medicaid qualification, or any other type of necessary preparation, it is smart to learn how to protect your assets, your loved ones, and yourself by developing a plan before something happens.

What is a POLST form?

A Physician Order for Life-Sustaining Treatment (POLST) is a document that is designed to allow terminally ill individuals and those experiencing an emergency to indicate to health care professionals what they desire to happen in life-ending situations. A POLST is NOT a substitute for a Health Care Directive. POLST documents are short (often fill-in-the-blank) and limited as to how you are able to express your beliefs surrounding life-sustaining treatments. At its most basic level, a POLST allows you to instruct health care professionals to do everything in their power to keep you alive, or to allow you to die naturally with only specifically authorized care. Often, a POLST form will come into play in emergency room visits and 911 calls.

Within the POLST form, three key end-of-life issues are presented. These include choices surrounding the use of CPR, the level of medical intervention allowable, and the use of artificial nutrition/hydration. A POLST document becomes important when someone encounters a new, serious condition and they do not have a Health Care Directive in place.

To be effective, a POLST must include the signature of a doctor. This is a REQUIREMENT. Without a doctor’s signature, a POLST holds absolutely no power, as it is not technically a medical “order”. The doctor will often fill in the patient’s preferences after having a conversation with the patient. A patient must express an interest in completing a POLST form to the doctor, as neither a doctor nor a patient can create a POLST independently.

Overall, a POLST form is something that controls in terminal and emergency situations. A Health Care Directive is vastly preferred to a POLST form due to its breadth and its ability to be tailored to the individual’s specific wishes and beliefs. Understanding the difference between the powers of these two documents can be crucial to controlling the final stages of one’s life. If you or a loved one is experiencing an irreversible, serious health condition, be sure to ask your doctor about a POLST form or complete your Health Care Directive as soon as possible.

For more information on Minnesota’s specific POLST requirements visit: http://www.mnmed.org/advocacy/improving-health-of-minnesotans/POLST-Communications.

Medicare in Elder Law

Medicare is a program for which all Americans age 65 and older qualify. It is not means-tested or limited to the financially needy; however, it has specific coverage limitations that are not always known to those who rely upon Medicare for care.

There are four parts to Medicare: Part A, which covers inpatient hospital stays, hospice, and doctor-prescribed home care; Part B, which covers physician fees and outpatient medical services; Part C, which grants a limited number of private providers the opportunity to offer Medicare services; and Part D, which provides for drug prescriptions with an additional monthly premium. Participation in one or more of Medicare’s parts is optional, based on your personal preferences and needs.

Part A is premium free except in rare cases. However, it should be noted that there are deductibles paid out of pocket, and the level of financial coverage drops drastically after sixty (60) days in the hospital or twenty (20) days in a skilled nursing facility. Click the link here for more information.

Part B has a monthly premium of $105 for most people. Premiums increase depending on the beneficiary’s income. For Part B, there is a yearly deductible of $147. See the link provided above for further information about the costs of Part B.

One of the frustrations people have with Medicare is the services that Medicare doesn’t provide or cover. For example, there is some coverage for in-home care, but only when it comes to treatments for acute illnesses or injuries. In other words, preventive care and care for ongoing conditions, such as Alzheimer’s, are not covered. In addition, coverage for skilled nursing care such as room and board at assisted living homes is subject to a one-hundred day cap. In order to expand coverage, some people turn to private insurers to bridge the gap between their needs and the limited services that Medicare provides. Eventually, many individuals abandon Medicare altogether, pay privately, or shift into the Medicaid program.

Planning for health care as we age is incredibly important. After all, everyone wants to receive the best care possible without burning through all of their assets to finance it. That is where Elder Law Attorneys come in. Not only can they explain how to utilize Medicare properly, they can help clarify your financial future by developing an estate plan that incorporates your health care needs into it. Speaking with an Elder Law Attorney can help avoid unexpected out-of-pocket expenses and coverage gaps due to the limitations of Medicare.

Planning for Funeral Arrangements

Sure, many of us have planned a surprise birthday party for a friend or a surprise visit to our parents for the holidays, but have you ever thought about planning ahead for your funeral arrangements? While it is not nearly as entertaining, planning for funeral arrangements can be an empowering, comforting, and thoughtful gesture.

Planning of this type refers to the process when an individual works with a funeral director to ensure that arrangements for a funeral service and burial or cremation are in place. Many people elect to address this type of planning in conjunction with their estate planning. The Elder Law Attorney working on their estate plan can help clients understand how to fit funeral planning into their financial picture and discuss choices for funeral homes and payment options. Additionally, it may be wise to make sure the attorney references any planned funeral arrangements in the Will.

Funerals have developed a modern reputation for being very expensive. There are a few ways that people choose to pay for funeral arrangements. A common one is establishing a Trust with the funeral director (Minnesota does not allow this type of planning). Another option is to purchase a life insurance policy equal to the funeral costs and payable the funeral home. In either case, the money does not become available to the funeral home until after death. Additionally, the funeral contract may designate a transfer of the funds paid to another funeral home. Consider speaking with an Elder Law Attorney or a funeral director for more information about these payment methods or to learn about other choices available.

During planning, you have the opportunity to choose a venue, select specific hymns or songs, designate a casket, and add any other personal touches you desire. Some Minnesotan’s even go so far as to select the type of food they want served after the service. If you want to be a part of writing your final chapter, some individuals have contributed to their own obituaries as well. Perhaps you don’t want to control the arrangements, but you have a specific friend or family member in mind who you would like to do so. In such a situation, it is incredibly important to speak with an Elder Law Attorney so as to include those directions within a Health Care Directive.

Why might people want to plan their own funeral? Well, because if they don’t that means that their family or friends will have the task delegated to them. While funerals are inherently somber affairs, they represent an opportunity to plan a final celebration of your life. Who is better able to reflect upon your life and envision its celebration than you? Proper planning for end-of-life services can allow family members to grieve in a healthy manner. Proper planning also sets aside the costs for the funeral in advance so family does not need to find the funds to pay for the funeral upon your death.

For more information surrounding your rights in relation to funeral planning, visit the link below and review the Federal Trade Commission’s series of articles on “Shopping for Funeral Services”: https://www.consumer.ftc.gov/articles/0070-shopping-funeral-services

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