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Personal Independence & Incapacity Care

Personal Independence and Incapacity Care

This is our third article about the importance of planning for physical or mental disability.  In a prior article, we focused on financial management planning alternatives for persons facing potential health crises and incapacity.  In our last article, we noted that planning for nonfinancial issues may have even greater personal impact and suggested how to effectively communicate your wishes about your future health care.  In this article, we address how to make decisions about your future living arrangements and personal care while you are alive, how to make decisions about your remains after your death, and how such decisions can be legally and effectively communicated.

Your Personal Care is First and Foremost a Family Affair

For centuries, personal care of the elderly has been love-based and family-centric.  Just as we love and feel responsible for caring for our juveniles, part of our culture is that we reciprocate this affection and attention for those who cared for us when we were young and could not effectively do so.  As family members age and face impending incapacity, where they will live when they can’t maintain the normal routines of daily living is generally a personal or family decision.  With that in mind, it makes sense to have these discussions early so that all family members are clear and on board as to how this will work when this time comes.  Evidence these decisions by memorializing them in writing to make it clear what your wishes are if the time occurs when you can no longer voice your desires.  This evidence need not be legalistic or formal.  The evidence is better if it is clearly a communication of your personal desires and intent.  Letters and email messages will suffice if they are maintained where they can be found and read in the future.

Court-Appointed Guardians of Your Person

What happens if you are incapacitated and there is no family to rely on or if, in a diminished state, you clash with what others think is best for you.  This may be where a court is called upon to step in to determine who or what decision-making is in your best interest.  In Maryland, a court is authorized to appoint a “guardian of the person” for a person who is judged from clear and convincing evidence to lack “sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter…”.  In this regard, the court looks to determine whether the person before it is “unable to provide for the person’s daily needs sufficiently to protect the person’s health or safety” and who “as a result of this inability requires a guardian of the person.”

After appointment, this guardian of the person becomes an officer of the court who is designated to decide what is best for the ward.  With this in mind, it is a good idea to designate in advance who you would prefer to be the guardian of your person were a court to find that you need one.  Indeed, Maryland law provides a priority list for who is entitled to appointment as a guardian of a disabled person, and first on that list is “a person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time…”  Such designations are often made a part of power of attorney documents because these documents are required to be carefully witnessed (and, in the case of financial powers of attorney, notarized).

In the absence of a designated person, the statutory order of priority entitles persons to be appointed in the following order:  the disabled person’s health care agent; then his or her spouse; then parents; a person, agency or corporation nominated by the will of a deceased parent; children; heirs if the disabled person were deceased; a person, agency or corporation nominated by a person caring for the disabled person; and, finally, any other person, agency or corporation considered appropriate by the court.  Note, however, that for good cause, a court may pass over a person with priority and appoint a person with a lower priority.  Therefore, in case guardianship proceedings are commenced in the future, it is best to make your wishes in a written form that can be presented to the court for use in its determination.

Maintaining Your Independence

How long you maintain your independence from family or guardian care will depend on a number of factors.  First and foremost, if you are a citizen of the United States, you have a constitutional right to “liberty” guaranteed by the Fourteenth Amendment that cannot be taken from you without due process of law.  Even family members cannot deprive you of that right without court action.  Importantly, as noted above and assuming that you have not committed a crime, a Maryland court cannot take that liberty away from you without a determination based on clear and convincing evidence that you lack sufficient understanding or capacity to make or communicate responsible decisions concerning your person.  Thus, as long as you can make or communicate responsible decisions, you have the right to do so and to live on your own.

Practically speaking, your ability to remain independent may depend on your personal finances.  If you can make and communicate your desire that your resources be devoted to maintaining your independence and if your finances are such as to allow these expenditures, you remain in control even though you cannot provide for your daily needs yourself.  In effect, your finances allow you to provide for your daily needs by employing others (such as hired caretakers) to do so or by entering an assisted living facility.  While decreased mobility (e.g., an inability to drive a vehicle) is often a reason for moving in with a family caretaker, this need not be the case if you can offset this decreased mobility using your resources (e.g., by hiring drivers and/or shopping services, etc.) or if, because of assisted living circumstances, such mobility is no longer so necessary.  For these reasons, planning to maximize your financial resources (including providing for long-term care and other insurance) and for who will manage your finances as you direct (if you no longer manage them yourself) becomes a very important practical aspect of maintaining your personal independence.

Anatomical Gifts and the Disposition of Your Remains

The capacity to make and communicate responsible decisions not only determines the extent of your independence while alive, it also allows you to plan and determine what happens to your body after your death.

First, under Maryland law, “an advance directive” may contain a statement by a declarant that the declarant consents to the gift of all or any part of the declarant’s body for the purposes of transplantation, therapy, research, or education.  Typically, one evidences such a gift in one’s health care advance directive, in a separate anatomical gift form witnessed by two adult witnesses, or in the donor’s will.  In any of these instances, it is best to also cause a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver’s license or identification card to make sure that health care providers are made aware of your wishes.  After making an anatomical gift, a donor may by law amend or revoke the document in which the gift is reflected.  You may wish to also note that any individual may instead explicitly refuse to make an anatomical gift of the individual’s body or part by signing or directing another to sign a record to this effect or by placing such refusal in his or her will.

In addition to planning for anatomical gifts of usable organs, “[a]ny individual who is 18 years of age or older may decide the disposition of the individual’s own body after that individual’s death without the predeath or post-death consent of another person by executing a document that expresses the individual’s wishes regarding disposition of the body or by entering into a pre-need contract” signed by the individual and a witness signing in his or her presence.  Such a document may provide for cremation as opposed to burial with embalmment and may designate who can make post-death decisions about these and other matters concerning the disposition of the individual’s remains.  If a person has not signed such a document, the following persons, in the order of priority stated, have the right to arrange for the final disposition of a decedent’s body: the decedent’s spouse or domestic partner; an adult child of the decedent; a parent of the decedent; the decedent’s adult brother or sister; a person acting as a representative of the decedent under a signed authorization of the decedent; the guardian of the person of the decedent (if any) at the time of the decedent’s death; and then any other person (including the decedent’s personal representative) willing to assume the responsibility.  If a decedent has more than one survivor, the majority of the class may serve as the person in charge of the body disposition.

 

When I ask clients for their goals in undertaking estate planning, I find that their primary concerns turn out to be maintaining control of their persons and property while alive and taking care of themselves and their loved ones if they become incapacitated.  Even more important than the transfer of family wealth is using those resources to maintain independence and control while alive.  I hope that this article has given you some food for thought about discussing with your family your decisions about your future living arrangements and personal care and about how to effectively memorialize those decisions so that they will be followed in the future.  Please feel free to contact us if we can help you clarify your thoughts and assist you through this process.

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Planning & Communicating Health Care Decisions
& Surrogate Decision-Making

Planning and Communicating Health Care Decisions and Surrogate Decision-Making

As we live longer, we face an increased likelihood of physical or mental disability.  In our last article, we focused on financial management planning alternatives for persons confronted with potential health crises and incapacity.  While financial management is important to assure the resources to carry through life and to pass on to loved ones, planning for nonfinancial issues may have even greater personal impact.  Whatever your resources, they may be ineffective if you don’t properly plan and designate future caretakers who will make the types of personal and health decisions you want made.  In this article, we address how personal health care decisions can be legally and effectively communicated.

Advance Directives for Health Care

Under common law, absent a public interest otherwise, we each have a right to determine who can touch our body or not touch our body at any given time.  For the purposes of deciding among health care alternatives, Maryland law provides that “[a]ny competent individual may, at any time, make a written or electronic advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual.  Notwithstanding any other provision of law, in the absence of [such] a validly executed or witnessed advance directive, any authentic expression made by an individual while competent of the individual’s wishes regarding health care for the individual shall be considered.”  Note however that, for your wishes to be considered when you can no longer communicate, they should be spelled out in writing so that they can be read by health care providers without involvement of a court, or, if court involvement becomes necessary, so that the court has proof upon which to make a decision.

As Justice William Brennan noted in his dissent in the Supreme Court’s landmark 1990 Cruzan decision, “Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues.  Some patients, however, want no part of a life sustained only by medical technology.  Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity.”  If you wish to limit or eliminate artificial measures to prolong your life, you will want to execute a type of advance directive called a “Living Will Declaration”.  In effect, a Living Will Declaration is an advance directive that, in certain defined situations, health care should be withheld or withdrawn.  Maryland law facilitates such communication by defining common instances for such decisions in the event that you suffer a “persistent vegetative state”, “end-stage condition”, or “terminal condition” so that health care providers have a common understanding as to what these terms mean.  While you may wish to specify other situations where you don’t want your life prolonged by artificial measures (such as if you become a paraplegic) or you may wish to modify the Maryland definitions (such as to define the word “imminent” in the State’s definition of “terminal condition”), these definitions become a good starting point for expressing your intent about end-of-life treatment in a manner that others will understand.

In addition to living will declarations, Maryland and other states now require health care facilities to maintain a “Medical Order for Life-Sustaining Treatment” (commonly known as a “MOLST”) as a part of a patient’s medical records.  A MOLST is a written medical order signed by a physician, physician’s assistant, or nurse practitioner concerning the use of life-sustaining procedures, use of medical tests, patient transfers from a hospital to a nonhospital setting, and other appropriate treatment matters across various health care settings.  By law, the MOLST is supposed to be consistent with the patient’s known decisions and advance directives (and the decisions of his or her health care agent or surrogate decision maker) so it is important that you provide copies of all of your advance directives for care to your health care facility upon entry.  It is generally a good idea to review and prepare a MOLST form ahead of time to go over the decisions to be made at the health care facility’s MOLST interview.  (You can download one of these forms from our website at https://thewrightfirm.net/forms/.) My experience is that if a competent patient has completed a reasonably contemporaneous MOLST worksheet, that will be the basis of the one ultimately entered at the health care facility.  Such a completed written MOLST worksheet is itself also an effective written advance directive regarding your wishes about your health care or the withholding of health care.

Advance Directives for Surrogate Health Care Decision-Making

Since it is virtually impossible to anticipate all the potential health care decisions that might need to be made were one to become incapacitated, it is important to designate a surrogate to make those decisions in the manner that you would want them to be made.  In this regard, Maryland law authorizes “[a]ny competent individual . . ., at any time, [to] make a written or electronic advance directive appointing an agent to make health care decisions for the individual under the circumstances stated in the advance directive.”  When making an advance directive to appoint a health care surrogate, be sure to designate alternative agents to act in this capacity in case one designated surrogate is unable or unwilling to act.  Both primary and alternative health care agents may be appointed to act together as co-agents, individually by themselves, or consecutively in a line of succession.

Unless otherwise provided in the document, an advance directive by law only becomes effective when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision.  “Incapable of making an informed decision” means the inability of an adult patient to make an informed decision about “the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment or course of treatment, is unable to make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment, or is unable to communicate a decision.”  Know therefore that, in naming a health care agent, you are not giving up the right to make your own decisions.  You retain that authority until two doctors determine that you can no longer make informed decisions for yourself or unless you designate other circumstances as to when you want your nomination to become effective.  Should you choose to do so, you may designate persons (such as family members) other than physicians to decide when the designation takes effect.

If you fail to designate who you want to make health care decisions for you when you can no longer make informed decisions and the need for a surrogate arises, Maryland law provides a priority list for who is entitled to be your decision-maker in this order: your guardian, if one has been appointed; your spouse or domestic partner; an adult child; your parent; your adult brother or sister; or another friend or relative who demonstrates specific facts and circumstances that show regular contact and familiarity with your activities, health, and personal beliefs.  Individuals in one particular class may be consulted to make a decision only if all individuals in the next higher priority are unavailable.  Since the first priority class is a guardian appointed by a court, it is generally always better to name who you want to serve in an advance directive rather than to leave such a court appointment to chance.

HIPAA Authorizations for Release of Protected Health Information

In 1996, Congress passed a law entitled the Health Insurance Portability and Accountability Act (“HIPAA”) that limits the use, disclosure, or release of a patient’s “individually identifiable health information”.  While the main purpose of HIPAA was to help consumers maintain health insurance coverage as they changed locations and jobs, Congress was concerned that in doing so, it was increasing the likelihood for inadvertent disclosures of private health information as people moved around.  Congress decided that such disclosures could only be avoided if harsh penalties were imposed on health care providers who released individually identifiable health information without explicit patient authority.  HIPAA’s success and the resulting provider reluctance to release health information to persons other than their actual patient make it important that, in addition to declaring who you want to be your surrogate decision-makers, you authorize them to obtain individually identifiable health information about you.  A written Authorization for Release of Protected Health Information (or “HIPAA Waiver”) is a means to make sure that your designated surrogate can obtain the information necessary to make meaningful decisions.  Very often, the designated surrogate will need to get health care information about you from many different sources, not all of whom know your particular current circumstances.  A HIPAA Waiver is a proactive approach to making sure such health care information will be available to your health care agent from sources who otherwise fear being hit with a large fine for disclosure.  In addition, you may wish to allow family members to have individually identifiable health information about you to provide them with information about inherited health conditions.  Therefore, make sure that your HIPAA Waiver names both your designated health care agents and such family members and that the HIPAA Waiver survives your death.

 

The common thread here is that federal and Maryland law provide for and encourage you to plan and communicate your wishes in advance about how your personal health care decisions should be made if you are incapable of doing so at a later time.  We encourage you to think about and make these decisions now rather than to risk never addressing them.  As you can see, there are many tools available to document your wishes in writing so you can make sure they are available and understood when the need arises.  As always, I will be happy to discuss your future health care wishes with you and how available legal documents can insure that your expectations will be carried out.

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Surrogate Financial Management Planning with Powers of Attorney
and Revocable Trusts

In our last article, we focused on the importance of lifetime planning for Mature Single Individuals and some of the impediments they face in accomplishing such planning.  This article focuses on financial management planning alternatives for persons confronted with potential health crises and incapacity.

The Deceptive Ease of Creating a Power of Attorney

Because it is relatively easy to designate a surrogate to manage and control one’s property by means of a document called a “power of attorney”, a court-supervised guardianship of the property of a disabled person generally means that either the person failed to plan effectively for his incapacity or that he or she had no available potential surrogates from which to choose.  In a power of attorney, a “principal” grants authority to an “agent” or “attorney in fact” to act for the principal.  In the case of a power of attorney for property and/or financial management, the authority granted is to act with respect to the principal’s property for the benefit of the principal.  Under the Maryland General and Limited Power of Attorney Act (“the Act”), the agent has a legal duty to “[a]ct in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the best interest of the principal; [to a]ct with care, competence and diligence for the best interest of the principal; and . . . only within the scope of authority granted in the power of attorney.”  Unless otherwise provided in the power of attorney, the agent has a further legal duty to “[a]ct loyally for the principal’s benefit; . . . [and] so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest; …”

The Act facilitates the designation of naming such an agent by including two statutory forms that can be used for this purpose.  However, when designating a surrogate, it’s extremely important to pay attention to the details of what is provided in the power of attorney document.  Because powers of attorney are such powerful instruments, the Maryland Court of Appeals has long held that it is a “well settled” rule that powers of attorney are “strictly construed as a general rule and [are] held to grant only those powers which are clearly delineated” in the instrument.  One cannot merely designate that his agent has “all the powers that I have” in a simple one-page document without designating specific authorities for specific types of property.  As a result, while they will work in many common situations, one cannot rely on use of just one of Maryland’s statutory form powers of attorney for effective management of all potential situations.  For example, the commonly used “Personal Financial Statutory Form” includes no provisions with regard to dealing with tangible personal property or business assets, and neither statutory form includes effective gifting authority to enable the agent to engage in effective tax or Medicaid planning. Maryland attorneys typically use two property powers of attorney for their clients: one of the statutory forms for ease of enforceability in the common situations an agent is likely to face that are covered in the statutory form and a second, supplemental power of attorney for the special situations that the statutory forms don’t cover.

A problem may occur with regard to when an agent is first allowed to exercise authority.  Under the Act, unless the principal provides in the document that it becomes effective at a future date or on the occurrence of a future event or contingency, a power of attorney is effective when executed.  Such immediate effectiveness can be contrary to the intent of the Mature Single Individual who wants to name a surrogate but, because of the parties’ relationship or lack thereof, does not want to give that person immediate control over her property.  While signing a power of attorney does not relinquish the principal’s rights with regard to property, allowing someone else to have that control as well can be unsettling.  In such cases, the person planning for a surrogate may want to employ a “springing power of attorney” that only becomes effective upon a designated future event or contingency (such as incapacity).

Pitfalls When Utilizing Springing Powers of Attorney

While springing powers of attorney are recognized in Maryland, they are not without problems of their own.  As with any power of attorney, there is always a fear by banks and securities brokers that they may somehow be found liable for giving credence to a power of attorney granted fraudulently or after a disqualifying incapacity has already occurred.  In the case of springing powers, there is an added concern as to whether the event initiating the power of attorney’s effectiveness has actually occurred.  For example, if a power of attorney states that it is not effective unless the principal is incapacitated, how does bank teller know whether this is the case?  When a springing power of attorney is deemed to be appropriate, it is always better to specify an ascertainable contingency such as when two licensed doctors make a specific written certification rather than just defining the springing event as one without requiring tangible evidence conclusively proving that the event has occurred.

A second related problem with springing powers is that they are not recognized under the laws of some states.  In Florida, for example, the banking industry convinced the Florida Legislature in 2011 that dealing with springing powers of attorney was so difficult that it would be better not allowing them at all.  While this situation is probably not enough to preclude a Maryland resident from using a springing power of attorney when nervous about his or her potential agents, the questions involved in using such powers should not be ignored.

One poor alternative when worried about an immediately effective power of attorney while at the same time wishing to avoid the problems of springing powers is that of executing an immediately effective power of attorney but giving all copies of the document to a third person (such as a friend or an attorney) who is to decide when it’s appropriate to provide the agent with the power of attorney document.  In essence, this is creating a fiduciary to decide when to empower a surrogate.  This alternative makes little sense.  Who would want to subject himself to the potential liability of making a wrong decision about a potentially untrustworthy agent?  What does the decision-making fiduciary do if the designated agent declines to serve when the decision is made?  How does a financial institution know whether the principal intended the agent’s authority to be effective if the instrument was dated years before.  Does the designated agent not already have effective powers even though he or she may not know what the document says?

Planning for the Needs of More than One Person

One final problem with using powers of attorney for surrogate property management is that they have historically been used only for managing property and financial assets for the benefit of the principal granting them and not for others as well.  A person might want his or her agent to exercise authority with regard to his or her assets for the benefit of someone else, such a spouse, an elderly parent, or a disabled child.  This problem becomes even more cumbersome if a principal wants his property used for the benefit of both himself and the person he or she designates to serve as his agent.  Without specific language to the contrary in the power of attorney, the agent’s duty of loyalty to the principal in this situation will prohibit him or her from using the principal’s assets for the agent’s benefit.  While a principal may include language making clear what his wishes are and who he wants his assets to benefit, there is little or no law making it clear how a court (or financial institution) will interpret the agent’s authority to share the principal’s property benefits.

In short, financial powers of attorney are relatively easy to implement but not without pitfalls that can minimize their utility.

Using Revocable Trusts for Surrogate Property Management

Revocable trusts have long been touted as desirable to allow a decedent’s family to avoid probate after the decedent’s death.  Mature Single Individuals may not, however, place much value in avoiding probate after their death or, in fact, may welcome probate as a means of making sure their designated Personal Representatives carry out their wishes.  What is often overlooked is the very real utility of revocable trusts for Mature Single Individuals to allow them to maintain control of their assets for as long as possible before giving a fiduciary surrogate authority to manage them in their behalf.  This utility derives from the rich and extensive history of revocable trusts as fiduciary mechanisms for carrying out the wishes of the trustmaker, the nature of trusts as relationships designed to accommodate changing situations over extended periods of time, and courts’ familiarity with the use of trusts to take care of multiple parties.  The shortcomings of powers of attorney noted above are routinely handled using revocable trusts.

By means of a revocable trust, the financial surrogate (i.e., the successor trustee) is not vested with authority unless and until the events designated by the trustmaker occur.  Until that time, the trustmaker can act alone or with a supervised co-trustee.  Financial institutions rarely question how a successor trustee (as surrogate for the original trustmaker/trustee) exercises authority over assets held in trust when they have had ample opportunity to see how the original trustmaker intended that authority to be put to work.  And in those rare case where probate is desired to provide court oversight to assure appropriate postmortem distribution, the trustmaker can provide that the revocable trust be added to her estate to be distributed in accordance with her will.

In conclusion, the importance of making plans for the occurrence of incapacity cannot be overstated.  In addition, it is relatively easy to name a surrogate for management of your property and finances if and when incapacity occurs.  However, this process is not without potential pitfalls and should be guided by an experienced professional.  We welcome the opportunity to serve you in this role.

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Lifetime Planning for Mature Single Individuals

Lifetime Planning for Mature Single Individuals

Estate planning generally addresses three primary goals: keeping the client in control of his or her person and property while he or she is alive and well; taking care of the client and his or her loved ones if the client becomes incapacitated; and carrying out the client’s wishes after death. Clients in different life stages tend to give different priorities to these goals. Younger clients without children seem inclined to favor the first goal over the latter two. For those with a spouse and/or children, effecting post-mortem goals becomes much more important. Older clients tend to be more concerned with incapacity and post-mortem goals because the threats posed by these life stages seem closer at hand. In fact, with lengthening mortality rates, incapacity planning is taking on increasing importance for everyone.

Mature Single Individuals and the Problem of the “Short Bench”

For those who are not married and who have no children (“i.e., Mature Single Individuals”), planning for the disposition of property after death may not be as important as it is for those with closer family ties. The potential costs of such planning often encourage one to delay or avoid such planning. With greater importance attached to the designation of surrogates in the event of incapacity, life planning for the Mature Single Individual can actually be more challenging than for the married couple with children.

The basic problem for Mature Single Individuals in planning for their incapacity (or death) is the recognition that while surrogates are understood to be needed, fewer trusted fiduciary alternatives seem available. In our society, incapacity care tends to be rooted in close familial connections built over lifetimes. Where such close familial connections are not available or are available only to a limited extent, the question becomes how to find suitable surrogates to act for the incapacitated client while assuring fidelity and proper attention to these fiduciary duties. Without close family ties, the goal is often also to postpone the designation and implementation of surrogacy until the last possible moment when it becomes necessary.

Court-Supervised Guardianship – The Default Nobody Wants

In the absence of planning, the State provides a default means of determining such surrogacy. Under Maryland law, a court may appoint a guardian to act for a “disabled person” who is unable to manage his property or unable to provide for the person’s daily needs to protect his health or safety. Once such an appointment is made (following a mandated procedure intended to protect the alleged disabled person from unneeded interference), the court stays involved in the guardianship by supervising the guardian’s activities for as long as the incapacity continues. Such court participation inherently requires use of the disabled person’s resources to pay for this process and the guardians involved.

The choice of who serves as the disabled person’s guardian is made in the court’s discretionary determination of what is best for the disabled person and in accordance with a statutory priority list of possible surrogates ranging from a spouse, parents, or the disabled person’s children to heirs at law or any other person, agency, or corporation nominated by a person caring for the disabled person or otherwise considered appropriate by the court. Importantly, however, the statutory priorities list is topped by a person, agency, or corporation nominated by the disabled person if he had the foresight to do so while he has (or had) sufficient mental capacity to make an intelligent choice. As a result, even if a guardianship is not deemed to be objectionable and regardless of the age of the individual involved and the length of the potential “bench” of potential surrogates, it becomes quite important to address the issue of surrogacy by planning well before the onset of any “physical or mental disability, disease, habitual drunkenness, addiction to drugs, . . . compulsory hospitalization, or disappearance”.

The Importance of Addressing Lifetime Planning Issues

A court-supervised guardianship of a disabled person generally means that either the person failed to plan effectively for his incapacity or that he or she had no available potential surrogates from which to choose. This is unfortunate because it is relatively easy to designate a surrogate by means of two types of documents: financial powers of attorney and revocable trusts for the management of an incapacitated person’s property and money; and health care powers of attorney and advance directives to manage his or her health and personal well-being. (We intend to cover these types of documents in greater detail in upcoming articles.)

The primary point here is that the Mature Single Individual should not put off addressing incapacity issues that may have a great impact on his future quality of life. Inertia should not be allowed to control just because the Mature Single Individual does not particularly care about post-mortem planning or because his “short bench” of potential surrogates makes decisions difficult. Most will not want these issues resolved by the discretion of a disinterested court acting at the request of some distant heir or other person nominated by a care agency or otherwise considered appropriate by the court. “Estate” planning involves both lifetime planning and post-mortem planning. Lower prioritization for one does not preclude the importance of the other. And talking through difficult decisions with an experienced professional will often clarify potential resolutions. The critical step in this process is the first one: picking up the phone to make the initial appointment. Once one begins, the rest is easy.

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Five Tips for Affording the Cost of Long Term Care Insurance

The Maryland Health Care Commission estimates that about 70% of individuals over age 65 will require at least one type of long term care (“LTC”) during their lifetime. If LTC is required, the cost of this care in a nursing facility in our area currently averages between $70,000 and $120,000 per year. Alternatively, according to the Genworth 2015 Cost of Care Survey, the national hourly rate for home health aides is $21.50 and is expected to increase 4% annually. Obviously, these are significant expenses that can drain or deplete the average person’s savings.

Medicaid, the government’s safety-net for LTC, may be or become available to pay these costs, but Medicaid is means-tested and is only available to persons with very limited resources ($2,500 or less in available assets, with certain additional limited exceptions for spousal needs, a car, household furniture, and prepaid burial expenses, etc.). Until persons requiring LTC “spend down” to these limits (strategically or otherwise), those persons are required to use their available individual or family resources to pay the cost of LTC. With the exception of brief stays in nursing homes following a hospital stay, Medicare does not cover long term care. Private health insurance will cover LTC only if it is a specific LTC policy.

Understanding How LTC Insurance Coverage is Priced

As with many risks, insurance is generally available to pay the costs of LTC if the insurer believes it has sufficient time to build a fund that can provide the likely benefits it may be required to pay out plus a profit for its shareholders or members. Premiums for such insurance (“LTC Insurance”) are therefore based on:

  • (A)  the age and health of the insured (i.e., the likely time when LTC benefits will be required and length of the probable “build-up” period for the fund to pay those benefits);
  • (B)  the likely amounts of LTC benefits to be paid, which, in turn, are based on:
    • (1)    the daily (or monthly) LTC benefit actually paid,
    • (2)    the length of time the daily (or monthly) LTC benefit will continue, and
    • (3)    the “elimination period” between when the insured first qualifies for LTC Insurance and when payments under that LTC Insurance begin (i.e., the “self pay” period before which the LTC Insurance payments commence);
  • (C)  the anticipated investment performance of the insurer using the premiums paid;
  • (D)  the costs of insurance administration anticipated by the insurer; and
  • (E)  the profits the insurer seeks to achieve.

Tips for Affording the Cost of LTC Insurance

Most residence owners carry homeowners’ insurance to cover the risk of loss occasioned by fires and other casualties and premises-based tort liability. Yet, while a 70% likelihood of LTC would seem to dwarf the likelihood of such casualties and tort liability, why do so few seniors have LTC Insurance? When I ask clients who lack this insurance why this situation exists, the most common response is: “we looked into LTC insurance and found that it would be prohibitively expensive.” This is when I try to make sure they asked the right people the right questions and offer the tips below:

First, start your LTC Insurance inquiry early, i.e., before you reach age 60-65. The longer the period the insurer has to “build-up” a fund from which to pay your LTC benefits (and its profits), the less the insurer needs to charge as a premium. If you are generally in good health, the optimum time to buy LTC Insurance is probably while you are in your early 50s. However, if you are already older than that, don’t give up the idea of obtaining LTC insurance. There are other ways to cut its costs.

Second, shop around. Don’t just get a quote from one insurer. Different insurers use different experience and actuarial ratings to determine how long the likely length of the probable “build-up” period for the fund and projected time when LTC benefits will be required. In addition, different insurers will have different anticipated investment performances for the premiums paid, different charges for insurance administration, and different expectations with regard to the profits sought for investors. Pricing factors (C), (D), and (E) listed above are in fact variable. Probably the best approach is to use a broker that can obtain LTC Insurance from more than one insurer. Don’t forget, however, that your LTC Insurance “eggs” will likely all be in “one basket”. Make sure the ratings of whichever insurer you choose make it likely that the insurer will still be in business if and when your LTC needs occur.

If you haven’t started your inquiry early enough and if, even after shopping around, you find that the premiums for covering all your likely LTC needs are too expensive, don’t stop the inquiry there. You can look for ways to cut the cost of LTC Insurance by limiting the coverage sought to those most likely to match some or all of your potential risks. Partial coverage of those risks is most likely better than no coverage at all. Consider the following tips for partial coverage alternatives:

Third, accept reasonable limits on the length of the period LTC benefits will be payable for your benefit. You probably will not need LTC coverage for your entire life expectancy after the onset of the need for that coverage. That need will probably make it likely that you will not live to the same life expectancy as others your age not having that need. The average length of stay in a LTC facility is currently less than three years. If full LTC Insurance coverage for the balance of your lifetime is too expensive, consider limiting the coverage period to a dollar amount equal to four to six years (i.e., because of likely medical advances, a period slightly longer than the current average length of stay). Five year LTC Insurance coverage will provide LTC payments for any “penalty” period required for Medicaid means-testing strategies. In addition, if you are married, make sure your respective policies provide that any unused coverage purchased by a decedent spouse is available to the surviving spouse after the decedent’s death.

Fourth, accept a longer “elimination period” between when you first qualify for LTC Insurance and when payments under that LTC Insurance begin. If your entry into LTC is preceded by a prior hospital stay of at least 3 days, you need skilled care (such as skilled nursing or physical therapy services), and you are admitted to a Medicare-certified nursing facility within 30 days of your prior hospital stay, Medicare will pay some or all of your LTC costs for up to 100 days. (Currently, Medicare pays 100% of your costs for the first 20 days; and, for days 21 through 100, Medicare will pay the cost of your expenses over $161 per day.) Self-paying LTC costs during the elimination period may allow you to afford better coverage to protect your assets thereafter.

Fifth, and finally, consider a daily LTC benefit that will cover part but not all of your LTC costs. You may have other income that can contribute as well. If you can’t afford $250 or more per day coverage, price out the cost of $100 per day or $150 per day coverage. Don’t settle for no coverage just because you can’t afford insuring against all of the costs of LTC. Because of monthly social security benefits, other income, and investment compounding, partial coverage may go a long way toward extending available personal or family resources.

Learn how The Wright Firm can help you with your Long Term Care planning.