Critter Corner: What are some of the free preventative health services provided under the Affordable Care Act (ACA)?

Dear Angel,

I heard the good news about yesterday’s ruling that the ACA is here to stay. Can you tell me about some of the preventative health services I am eligible for under the ACA?

Thanks,

Anita Call Adocta

—–

Dear Anita,

The ACA mandates expanded preventive health services for all Americans, including Medicare beneficiaries.

Under the ACA rules, a free yearly wellness exam is available from doctors who participate in Medicare. The wellness exam supplements a one-time “Welcome to Medicare” exam that is free to people who take advantage of it within their first 12 months of Medicare coverage.  Medicare has details on the preventive measures it covers. Below are the Medicare preventive and wellness items that are free. Ideally, they should be part of an ongoing wellness plan that you and your physician develop.

Below are examples of preventative services covered by the ACA:

• Abdominal aortic aneurysm screening
• Bone mass measurement
• Flu shots
• Hepatitis B shots
• Breast cancer screening (mammograms)
• Medical nutrition therapy services (for those with diabetes or kidney disease)
• Pap tests and pelvic exams (includes clinical breast exam; once every 24 months or once every 12 months for at-risk women)
• One-time “Welcome to Medicare” physical exam
• Yearly “wellness” exam (for people with Part B Medicare longer than 12 months)
• Pneumococcal shot
• Smoking cessation (counseling to stop smoking; for those not previously diagnosed with an illness caused or complicated by tobacco use)

The Agency for Healthcare Research and Quality, part of the U.S. Department of Health and Human Services, provides a general set of wellness tips for women and men above the age of 50.

Be sure to take advantage of these important, no-cost procedures offered as a result of the ACA, as part of a wellness plan formulated by you and your doctor.

ACA is Here to Stay – Is That Good for Seniors?

Photo Source: Irish Times

Q. I heard that the Affordable Care Act (ACA) is here to stay, as of yesterday when the Supreme Court ruled to save the health care law. Is the ruling good for seniors? Also, can you clarify whether seniors on Medicare are or are not affected by the ACA?

A. Yesterday, in a moment of high drama, Chief Justice John Roberts  announced that he would issue the majority opinion in the case involving the ACA, and it became clear that the ACA would be here to stay. The decision has a major impact on the millions of Americans who are receiving financial assistance from the federal government to buy health insurance.

The ACA has given states the option to build their own healthcare marketplaces or to use one operated by the federal government. In all, 34 states decided to rely on the federal “exchange.” In doing so, more than 6 million low-income to moderate-income Americans are now receiving subsidies of on average $260 a month through the federal exchange. In all, at least 10.2 million Americans have signed up for health coverage through the ACA.

What Was the Lawsuit About?

In the lawsuit challenging the law, critics insisted the federal government is not allowed to subsidize insurance in states that rejected their own exchange for the federal system. Critics based their argument on a single phrase in the ACA that refers only to participants enrolled “through an Exchange established by the State.”

Last week, Health and Human Services Secretary Sylvia Burwell, said the administration was “in a very strong position in the case,” based on the wording of the law and “the intention of the law.” She warned an adverse ruling would likely mean millions of Americans would lose subsidies and be unable to afford health insurance coverage. She also indicated an adverse ruling would mean governors in states without exchanges would have to decide whether to create them, and Congress would face a decision over whether to intervene through legislation.

What Does the Ruling Mean for Seniors?

The ruling is a huge victory for President Barack Obama, who nearly saw four words in the Affordable Care Act throw his signature achievement into chaos. And, with the ruling, the ACA is really here to stay.  In fact, it will take an Act of Congress — and a President willing to sign it — to thwart the heart of the ACA.

The ruling is also good for seniors, in that it eliminates pre-existing condition exclusions, keeps children on parents’ policies to age 26, eliminates gender discrimination in pricing, and provides significantly more preventive and screening tests without cost.

The ACA and Medicare

You asked if people with Medicare are affected by the ACA. According to the Centers for Medicare Medicaid Services (CMS), below are some examples of how the ACA positively affects seniors on Medicare:

Preventative Services: The ACA helps tear down a significant barrier for some seniors to staying healthy and helps their care providers prevent, identify and treat problems early.

• More than 25.4 million senior citizens and others covered by Medicare received at least one preventive service at no cost to them during the first eleven months of 2013, because of the Affordable Care Act.
• Before the Affordable Care Act, Medicare recipients had to pay part of the cost for many preventive health services.
• These out-of-pocket costs made it difficult for many seniors to get the important preventive care they needed.

Annual Wellness Visits: In the first eleven months of 2013, more than 3.5 million seniors and other beneficiaries with Medicare took advantage of the Annual Wellness Visit established by the ACA.

Financial Viability of Medicare: Provisions of the ACA are proving to be highly beneficial to the future of the Medicare program.

• ACA provisions have had a substantial effect on reducing the growth rate of Medicare spending. Growth in Medicare spending per beneficiary hit historic lows during the 2010-2012 period, and this trend has continued into 2013 (Source: Department of Health and Human Services).
• Medicare spending per beneficiary will grow at approximately the rate of growth of the economy for the next decade, breaking a decades-old pattern of spending growth that outstripped U.S. economic growth. (source: projections by both the Office of the Actuary at CMS and the Congressional Budget Office)

Accountable Care Organizations (ACOs): Doctors, hospitals and health care providers establish ACOs to work together to provide better health care through closely coordinated services to their Medicare patients, while working to slow the growth of health care cost.

• The goal of coordinated care is to ensure that patients, especially the chronically ill, get the right care at the right time, while avoiding unnecessary duplication of services and preventing medical errors.
• According to CMS, when an ACO succeeds both in delivering high-quality care and spending health care dollars more wisely, it will share in the savings it achieves for the Medicare program.
• There are now more than 360 ACOs working with Medicare to provide higher-quality coordinated care to 5.3 million seniors and other beneficiaries, while reducing the cost of health care (source: HHS)

Prescription Drug Coverage Savings: The ACA saved seniors $8.9 billion on their prescription drugs since the law’s enactment (source: CMS).

• Seniors with Medicare Part D (prescription drug coverage) will see a $15 drop in their deductible, from $325 in 2013 to $310 last year.
• The “donut hole” (coverage gap for seniors with large prescription drug needs), has been getting smaller each year, since 2011, and due to ACA provisions, it will continue to get smaller. In fact, last year, the donut hole was $158.75 smaller than it was in the previous year, another step closer to the plan to eliminate this coverage gap by 2020. For more details, read our blog post about the donut hole.

As you can see, actions resulting from the ACA (also called Obamacare) are certainly having a major positive effect on seniors on Medicare today, and according to the CMS, will continue to do so in the future.

As you are taking advantage of the benefits of the ACA and planning for your next wellness visit, it is also a good idea to plan for your future and for your loved ones. If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact The Law Firm of Evan H. Farr, P.C. as soon as possible. To make an appointment for a no-cost consultation, please contact us:

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-143
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797

Alzheimer’s Caregivers Need to See This

“Caring for a Person with Alzheimer’s Disease” cover

Alzheimer’s Disease is an illness that causes people to lose the ability to remember, think, and use good judgment. Over time, as the disease worsens, those affected will have trouble with self-care and will need caregiving assistance; for those aging in place, a family caregiver is often involved.

Family caregivers typically experience mixed emotions. Sometimes, taking care of the person with Alzheimer’s makes a caregiver feel a sense of fulfillment because he or she is providing care and comfort for a loved one. Other times, it can be overwhelming and extremely challenging. To assist caregivers, who may or may not realize how much they have taken on, the National Institute on Aging has published “Caring for a Person with Alzheimer’s Disease–Your Easy-to-Use Guide.” This 106-page guide includes nearly everything you need to know to  cope with the changes and challenges you will experiences as a caregiver for someone with Alzheimer’s.

Click on the links below to go to the web version of the guide containing more information:

• How Alzheimer’s changes a person: Because Alzheimer’s causes brain cells to die, the brain works less well over time. This changes how a person acts. You will notice that he or she will have good days and bad days.
• How to communicate with a person with Alzheimer’s: Communication is hard for people with Alzheimer’s because they may struggle to find words or forget what they want to say. Caregivers often feel impatient because of this. The guide offers details and coping strategies.
• How to tell family members and friends: When you learn that someone you love has Alzheimer’s, you may wonder when and how to tell your family and friends. You may be worried about how others will react to or treat the person. While there is no single right way to tell others, the guide lists some things to think about.
• How to protect the person from fraud: People with Alzheimer’s are more likely to become victims of financial abuse or “scams” by dishonest people. There are numerous telephone, mail, e-mail, and in-person scams targeting seniors and people with dementia. Most scams are committed by strangers and organized criminals.  Sometimes, however, the person behind the scam is a “friend” or family member.  The guide offers signs that the person with Alzheimer’s is not managing money well or has become a victim of a scam or financial abuse.
• How to keep the person with Alzheimer’s safe at home: People with Alzheimer’s get more confused over time and often start wandering away from home, often trying to return to the “home” they remember, which is their childhood home. They also may not see, smell, touch, hear, and/or taste things as they used to. As a caregiver, you can do many things to make a home safer for a loved one with Alzheimer’s.
• How to stop the person from driving:  As the caregiver, you will need to talk with the person about why he or she needs to stop driving. Do this in a caring way. Sometimes a caregiver may need to get the person’s physician involved.  Understand how unhappy the person with Alzheimer’s may be that he or she has reached this new stage.
• How to keep the person active and healthy: Being active and getting exercise helps people with Alzheimer’s feel better. Exercise helps keep their muscles, joints, and heart in good shape. It also helps people stay at a healthy weight and have regular toilet and sleep habits. You can exercise together to make it more fun.
• How to adapt activities for someone with Alzheimer’s: Early in the disease, people with Alzheimer’s may still enjoy the same kinds of outings they enjoyed in the past. Keep going on these outings as long as you are comfortable doing them. Plan outings for the time of day when the person is at his or her best, and keep them from becoming too long. Cooking and baking, being around children and pets, and even doing household chores can also make someone with Alzheimer’s feel loved and appreciated.
• How to get help with caregiving: Some caregivers need help when a loved one is in the early stages of Alzheimer’s; other caregivers look for help when the person is in the later stages of Alzheimer’s. It’s okay to seek help whenever you need it. Asking for help shows your strength, and it means you know your limits and when to seek support. The guide provides details on how to build a support system, informational resources, direct services, and government benefits.
• How to find the right place for the person with Alzheimer’s: Sometimes you can no longer care for the person with Alzheimer’s at home, as it may not be possible for you to meet all of his or her needs. When that happens, you may want to look for another place, such as a nursing home, for the person with Alzheimer’s to live. The guide offers suggestions and criteria for finding the right place for a loved one with Alzheimer’s.
• How to plan ahead: A diagnosis of Alzheimer’s is life-changing for both diagnosed individuals and those close to them.  Generally, the earlier someone with Alzheimer’s plans for long-term care needs, the better.  But it is never too late to begin the process of Alzheimer’s Planning, also called Lifecare Planning, Medicaid Planning, or Medicaid Asset Protection Planning.  Medicaid Planning can be initiated by an adult child acting as agent under a properly-drafted Power of Attorney, even if the person with Alzheimer’s is already in a nursing home or receiving other long-term care.

Where to go for Help

Did you know that there are at least 44 million Americans are caring for aging parents or other relatives and friends? According to AARP and the National Alliance for Caregiving’s “Caregiving in the U.S. 2015,” the typical caregiver performs unpaid care for 21 hours or more each week, provides care for an average of five years and expects to continue care for another five years, and has an average household income of $45,700 (causing tremendous financial strain on the family). Caregivers of people with Alzheimer’s disease can draw on many sources of help for caregiving and financial support. Here are some places that provide general support and advice for Alzheimer’s caregivers:

• The Alzheimer’s Association offers information, a help line, and support services to people with Alzheimer’s and their caregivers. Local chapters across the country offer support groups, including many that help with early-stage Alzheimer’s. To find support groups in your area, call 1-800-272-3900.
• The Alzheimer’s Foundation of America provides information about Alzheimer’s caregiving and a list of services for people with Alzheimer’s. Services include a toll-free hotline, publications, and other educational materials. Contact the Foundation at 1-866-232-8484.
• The Alzheimer’s Disease Education and Referral (ADEAR) Center offers information on diagnosis, treatment, patient care, caregiver needs, long-term care, research, and clinical trials related to Alzheimer’s. Staff can refer you to local and national resources, or you can search for information on the website. The Center, a service of the National Institute on Aging, can be reached at 1-800-438-4380 or www.nia.nih.gov/alzheimers.
• The National Institute on Aging Information Center offers free publications about aging in English and Spanish. They can be viewed, printed, and ordered from the Internet. Contact the Center at 1-800-222-2225 or visit www.nia.nih.gov. Also, check out their extensive library of videos for Alzheimer’s caregivers.
• The U.S. Administration on Aging offers a comprehensive listing of caregiving resources.
• The Family Caregiver Alliance offers a calendar of events and trainings for caregivers.

Caregivers: Take Care of Yourself

Caregiving can be both emotionally and mentally taxing, and can easily lead to “caregiver burnout” (read our blog post about caregiver burnout and how to minimize the stresses involved with caregiving). Please encourage your family caregivers to take advantage of services that offer respite and support, and thank them for their strength, courage, and commitment in providing long-term patient care.

At The Law Firm of Evan H. Farr, P.C., we recognize that caring for a loved one strains even the most resilient people. If you’re a caregiver, take steps to preserve your own health and well-being.  Part of taking care of yourself is planning for your future and for the future care needs of your loved one with Alzheimer’s.  To make an appointment for a no cost consultation, please contact us.

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797

Critter Corner: 8 Things You Can Do to Prevent Elder Abuse

Elder Abuse is a “Public Health Crisis”

Q. Not long ago, my mother, who is in her 80s, was … [Read More…]

Elder Abuse is a “Public Health Crisis”

Elder Abuse is a “Public Health Crisis”

Q. Not long ago, my mother, who is in her 80s, was … [Read More…]

How to Make Your Own Bucket List

 Michael Ellenbogen skydiving (from YouTube)

After more than a decade of having symptoms, Michael Ellenbogen was diagnosed with early-onset Alzheimer’s at 49. He is one of an estimated 1.4 million people worldwide who have been diagnosed before 65.

After receiving the diagnosis, he decided not to let it get him down. Instead, he felt empowered to check everything off his bucket list, including parachuting from an airplane at 12,500 feet, something he said he would have NEVER done otherwise.

We can all learn from Ellenbogen, whose philosophy is “(J)ust because a person has been diagnosed with an illness, doesn’t mean they should stop being active or avoid contact with other people. On the contrary, the best way to fight back is by maintaining a purpose — by staying active and social.” He asks others in similar situations to “not put limitations on yourself.” He believes that there are people out there who will help you do things you don’t think you can do.

In another example, Kris B. was diagnosed with early-onset Alzheimer’s when she was 46 years old. Her bucket list included taking a trip to Australia, having all of her friends at her home at once for coffee, making a difference for someone, and meeting Maria Shriver. She accomplished three items, so far, and is working on the 4th. At 59, she works as an Alzheimer’s advocate and speaks on a local and national level about dealing with Alzheimer’s, while living it. She sincerely hopes her perspective will help others.

Early-onset Alzheimer’s

Roughly 12 million people worldwide have Alzheimer’s or related dementia. It is considered “early-onset” when the disease is diagnosed in those younger than age 65, and it strikes 250,000 Americans a year according to the Alzheimer’s Association. Typically, those diagnosed with early-onset Alzheimer’s are in their 50s, but can be as young as in their 30s and 40s.

A common hurdle is often a proper diagnosis, a process of elimination that can take years. In fact, the Alzheimer’s diagnosis is not always disclosed to patients. The Alzheimer’s Association’s 2015 Alzheimer’s Disease Facts and Figures report, released last month, found that only 45% of people with Alzheimer’s disease had been told of their diagnosis in the early stages. That means that 55% of those surveyed were not informed until the disease was more advanced. Please read our blog post, “Alzheimer’s Diagnosis is Rarely Disclosed to Patients” for more details and coping strategies.

If you think you have symptoms of Alzheimer’s and want to know with certainty, be sure to get several opinions from trusted medical professionals.

Creating a Bucket List in the Early Stages of Alzheimer’s

Alzheimer’s can progress at different rates, with many early-onset patients remaining engaged and enthusiastic for years after the diagnosis, experts say. Before experiencing symptoms, many patients with early-onset dementia had expected to continue working well into their 60s or beyond.

Bucket lists are things to do before you “kick the bucket,” or in the case of those with Alzheimer’s or dementia, while you still have your wits about you. Things on bucket lists are often those we put off, have felt too scared to do, or never had the time to fulfill.  Here are a few basic rules that may help you compile yours, should you choose to do so:

• Achievable activities: A bucket list has to be a realistic list of achievable activities. Physical attributes and disabilities have to be considered, as does the level of memory impairment.
• The earlier, the better: The list must be compiled by the person with Alzheimer’s. Otherwise, it defeats the purpose. In addition, the earlier the list is compiled, the better.
• Be flexible: As life progresses, you do change your mind about things. Also as a disease such as Alzheimer’s progresses, your desires may change and may become more sedate. Rather than parachute jumping out of a plane, you may prefer meeting your niece in the next state or visiting your childhood home.
• Make sure it’s legal: Your bucket list should be legal! A recently reported suspect in a bank robbery in Utah was dubbed the “Bucket List Bandit”. In a note demanding money, the suspect had written “I have four months to live.” The FBI said he had told them he has cancer.
• Consider who will be involved: You have to consider who will help you carry out your bucket list in the future, and ask them if they are willing to participate.
• Simple is better: Bucket lists do not have to be complex or have a pre-set number of items. It’s all about what is important at the time, practical, and affordable.
• You can amend it or add to it later: Like all lists, there is nothing stopping things being added, amended, or removed.

Alzheimer’s Planning

A diagnosis of Alzheimer’s or other types of dementia is life-changing for both diagnosed individuals and those close to them.  Generally, the earlier someone with dementia plans for long-term care needs, the better.  But it is never too late to begin the process of Long-term Care Planning, also called Lifecare Planning and Medicaid Asset Protection Planning.

Understanding Living Trust Plus™ (LTP) Medicaid Asset Protection Trust:

For those with early-onset Alzheimer’s, the Living Trust Plus™ (LTP) is often the most appropriate legal / financial strategy to plan for long-term care in the future. An LTP functions much like a Revocable Living Trust and maintains much of the flexibility of a Revocable Living Trust, but protects one’s assets from the expenses and complexities of probate PLUS nursing home expenses while the creator of the trust is alive. Obtaining this type of protection from the devastating costs of nursing home care is extremely important for the 99.8% of Americans who are NOT among the ultra-wealthy who can afford to pay for their own care indefinitely.

If you would like more information about Living Trust Plus™, please register for one of our upcoming informational seminars. Our seminars teach attendees how to protect their assets from the expenses of probate and long-term care, how to obtain valuable Medicaid and Veterans benefits to pay for long-term care, how to protect assets from lawsuits, divorce, and long-term care creditors, and more. Reserve your spot today.

Medicaid Asset Protection

People with Alzheimer’s live on average four to eight years after they’re diagnosed, but some may live 20+ years beyond their initial diagnosis (especially those with early-onset Alzheimer’s). Do you have a loved one who is suffering from Alzheimer’s or any other type of dementia? Persons with dementia and their families face special legal and financial needs. At The Law Firm of Evan H. Farr, P.C., we are dedicated to easing the financial and emotional burden on those suffering from dementia and their loved ones.  We help protect a family’s hard-earned assets so those assets can be used to enhance your loved one’s comfort, dignity, and quality of life while obtaining eligibility for two critical government benefits — Medicaid and Veterans Aid and Attendance. Please call us whenever you are ready to make an appointment for a no-cost initial consultation:

Fairfax Elder Law: 703-691-1888

Fredericksburg Elder Law: 540-479-1435

Rockville Elder Law: 301-519-8041

DC Elder Law: 202-587-2797

Critter Corner: What are a Trustee’s Responsibilities?

Dear Angel,

My mother, Alice, asked me to be the successor trustee for her Revocable Living Trust. Before I accept the responsibility, I want to know more about what it entails. Do you know about the duties of a trustee and can you briefly describe them?

Thanks!

Watson Volved

—-

Dear Watson,

Having been asked to be the trustee of your mother’s trust is a strong vote of confidence about your judgment. Keep in mind, however, that it is a major responsibility.

The following is a brief overview of a trustee’s duties:

1. Fiduciary Responsibility.  Fiduciary duty is a legal responsibility to act solely in another party’s best interests. By accepting fiduciary responsibility, a trustee may not profit in his or her role, unless the trustee has express informed consent, and must avoid any conflicts of interest.

2. Abiding by the Trust’s Terms. The written trust document is the trustee’s roadmap, and he or she must follow its directions, whether about when and how to distribute income and principal, or what reports need to be made to beneficiaries.

3. Investment Standards. With a revocable living trust, a trustee’s investments must generally be prudent, and not speculative or risky, and they must take into account the interests of both current and future beneficiaries.

4. Distributions. Where a trustee has discretion as to whether or not to make distributions to a beneficiary, he or she must take into account the size of the trust, and will need to evaluate the beneficiary’s current and future needs and other sources of income, and responsibilities to other beneficiaries before making a decision.

5. Reporting. A trustee’s job also involves keeping track of principal, income, distributions, and expenditures by the trust. He or she should check the terms of the trust to know how often he or she must report this information to the beneficiaries.

6. Taxes. The trustee will have to file an annual tax return and may have to pay taxes on behalf of the trust.

7. Delegation. While a trustee typically cannot delegate his or her responsibility as trustee, he or she can delegate all of the functions described above. He or she can hire financial advisors to make investments, accountants to handle taxes and bookkeeping for the trust, and an experienced Elder Law attorney to advise on questions of interpretation.

8. Fees. Trustees are entitled to reasonable fees for their services. Family members often do not take fees, though that can depend on the work involved in a particular case, the relationship of the family member, and whether the family member trustee has been chosen due to his or her professional expertise.

Acting as trustee can be gratifying, but as you can see from the responsibilities described above, it can be a lot of hard work, so be sure to think it through carefully before accepting the role. However, keep in mind that being the successor trustee of a Revocable Living Trust is a thousand times simpler than being the Executor of a Will (see our recent blog post about the difficulties of being an Executor).

Best of luck,

Angel

Help! My Bank Won’t Recognize Co-Trustees

Q. My mother named me and my brother as co-trustees of her Revocable Living Trust. She passed away earlier this year in her home town of Abingdon, VA (near the Tennessee border), where my brother still resides. Since then, when it comes to managing the trust, we have had nothing but trouble with the bank.

When I walked into Wells Fargo, I was told that a Trust Certification would have to be signed and notarized with both my brother and me in front of a notary at the same time. If we absolutely have to arrange that, I suppose we could, but it would be a considerable hassle because he lives nearly six hours away. I was hoping that I could sign any documents before a notary here and then mail the original to him to sign there, but Wells Fargo says this isn’t possible.  Maybe it’s just Wells Fargo being particularly careful, but they made it sound like any notarized document that has to be signed by co-trustees inherently requires both people to show up together.

I have also heard in other instances that some banks don’t recognize co-trustees acting jointly at all. When I do my own trust and want to name both my children as co-trustees, can this same situation somehow be avoided.
—–

A. Some trust creators (called Grantors or Settlors), such as your mother, have two children (or two people) they trust enough to make successor co-trustees of their trust. This puts both people in charge of the trust simultaneously.  A trust (and other legal documents such as a Power of Attorney), may allow successor co-trustees to act in concert and exercise their powers jointly, or it may be written to allow either co-trustee to act independently.

Family members may be excellent candidates to serve as co-trustees or successor trustees when a Grantor is alive.  But the job is entirely different after the death of both grantors (or the sole grantor in the case of an single person trust). Below are three common problems that are sometimes faced, including the issue you described with the bank:

Banks not accepting co-trustees

More and more financial institutions (banks, credit unions, etc.) will not recognize the authority of co-trustees who must act jointly. Instead, they require that the document designating co-trustees provide that each of the co-trustees may act independently of each other, because the bank does not want to be in the position of having to police the actions of the trustees;  rather, the bank, for its own protection, wants to be able to honor any action taken by either trustee.  In many cases, unfortunately, if the Grantor is deceased or incapacitated and the trust does not state that co-trustees can act independently, the co-trustees may be powerless to act on the account without legal action to amend the Trust or signing some agreement with the bank and contravenes the explicit terms of the trust.

Co-Trustees Acting Independently

Because of this growing problem, we are now recommending that trusts naming co-trustees state that the co-trustees can act independently (i.e., act alone and without both signatures). Even then, some banks make the assumption that both trustees must always sign everything, and sometimes extreme measures are necessary to get a bank to understand that this is not how the trust is written.  The trustees for one of our clients (as you can see from the photo above) actually got custom T-shirts made stating that they are “Co-Trustees, Acting Independently,” and they now wear these every time they go to the bank!

Co-Trustee Logistical Problems:

Another common problem associated with co-trustees is if the two trustees have to act jointly with each other, meaning they need to sign deeds, checks, and other financial documents together. This can slow down the process, especially if one or both trustees do not live near one another or are not communicating with each other. This can also slow down or cause problems when one trustee goes out of town for vacation, is incapacitated, etc.

Co-Trustee Disagreements

Another issue with co-trustees is what happens if there is a disagreement between them about the administration of the trust.  It is amazing how much family strife can occur when the matriarch or patriarch of the family passes away. If co-trustees are assigned equal authority and do not trust one another, do not get along, or just do not agree with the decision of the other co-trustee, it may require court intervention to break the disagreement (and most likely remove one or both the trustees to avoid further disagreements), and that can get very costly.

Trust Administration

Another way to avoid common co-trustee problems is to name a trust administrating institution, such as a professional trust company, a trust department of a bank, or a law firm, as the trustee, with children or other beneficiaries as Trust Protectors who can remove and replace the professional trustee at any time.

For example, the Farr Law Firm is available to serve as Trustee or Successor Trustee of a Living Trust, and/or Executor of a Will and/or Agent under a Power of Attorney.  We of course charge a minimum annual fee, and our firm is very selective in the clients we choose to offer this service to.  Feel free to contact us via our Contact Form if you would like a copy of our Fiduciary Fee Schedule and Disclosure, which explains in detail our fiduciary fees and services, and also explains that you should consider and investigate all of the alternatives available to you before deciding whom to select as Trustee and/or Executor and/or Agent under a General Power of Attorney.

Estate Planning

One of the best ways to avoid issues with co-trustees and banks is to talk to a Certified Elder Law Attorney, such as myself, who will ensure your trust is written and executed correctly. To begin your Estate Planning or to update your existing documents, please contact us.

Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797

When Loved Ones Aren’t Permitted to Visit

Peter Falk and his daughter, Catherine. (from dalje.com)

Jane and Maria are sisters who haven’t spoken in ten years due to a disagreement over their mother’s care. Jane was a caregiver for her mother, Millie, and served as her guardian and had Power of Attorney until she passed away. Maria lived in another state and knew her mother suffered from dementia, but had no idea she had taken a turn for the worse. This is because her estranged sister didn’t give her updates or permit her to visit. She felt powerless and sad that she couldn’t say goodbye to her own mother when she died, and didn’t even know she had been cremated.

In a similar situation involving family unrest, actor Peter Falk, best known for having portrayed Columbo on TV, died from complications from dementia. When his daughter, Catherine, was five, Falk divorced her mother, but he and Catherine continued to share a close relationship. In 2008, when he was suffering  from dementia, his second wife, Shera, made it difficult for Catherine to visit him and failed to give her updates on his health.

During his period of incapacity, Catherine went to court in California to try and get guardianship over her father, so she could visit him and have a say in his care. She experienced first-hand that children have limited rights when it comes to parental visitation. The court instructed Shera to permit Catherine to visit her father, but Shera did not comply. In 2011, when Falk passed away at age 83, Shera did not notify Catherine, who learned of her father’s death from the media. Nor was Catherine informed of her father’s burial, or even his final resting place.

The unfortunate situations described in our example and with the Falk family are similar to what unfolded with the family of the late Casey Kasem, whose daughter couldn’t find her father due to her stepmother, Jeanne Kasem, hiding him and not informing the family about his location. And it’s also similar to the Glen Campbell situation, where his children from a previous marriage claim that his current wife, Kim, isn’t providing him with toiletries and clothing, while possibly mishandling finances and keeping him “secluded from the rest of the family.”

According to Martha Patterson, attorney and secretary for the Kasem Cares Foundation, “(T)he stories are all similar they all start the same. ‘I haven’t been allowed to see my dad (or mom)’ is often followed by “I don’t even know where they are, they were moved by my step-parent or brother or sister. Can you help me?” Often the answer is no. Unfortunately, according to Patterson, “(T)here is NO law and NO way a child can request a visit with their parent in a private residence so when an elder is being isolated by his or her spouse, adult child, or a caregiver, there is NO easy way for a child to just ask for the right to see their parent.  A Conservatorship often is not even an option because a Conservatorship requires the child to prove their parent lacks the ability to make decisions.”

What can be done to expand children’s rights with respect to incapacitated parents?

To prevent other adult children and aging parents from enduring what her family endured, Catherine Falk is currently promoting legislation to expand children’s rights with respect to incapacitated parents. “There’s no legal recourse that adult children have currently that allows them to get any visitation to their parents,” says Falk. “They’re isolated, and isolation means elder abuse. We need a law to protect us and to protect our parents so that we can have a relationship in their final years and days of their life.”

As a result of her efforts, California is considering a bill – the Peter Falk Bill – that would recognize a child’s right to visitation with an incapacitated parent. There is movement in other states to introduce similar bills. If enacted, the proposed bill would require the conservator of an elder or dependent adult to inform the relatives of the conservatee whenever the conservatee dies or is admitted to a medical facility for acute care for a period of 3 days or more and would require the conservator, in the event of the death of the conservatee, to inform the relatives of any funeral arrangements and the location of the conservatee’s final resting place. The proposed Bill would also require cemeteries to open their records regarding interments to the public in order to allow persons to locate the graves of loved ones. The bill in California is gaining ground, and there is bi-partisan support for a similar bill in New York.

Kerri Kasem is also lobbying states to adopt a similar bill, and Iowa has become the first state in the nation with a law ensuring visitation rights of adult children to see ailing parents. Hopefully other states will see the importance and follow suit!

Family Turmoil can be overcome

Dysfunction happens equally in biological as well as blended families like the Campbells and Kasems. Children may fight spouses, feeling entitlement, even when there is a prenuptial agreement in place. Experts say good planning while the parent is still of sound mind can minimize the damage.

Ellen Goodman, co-founder of The Conversation Project, leads a national effort to get families to “sit down at the kitchen table” and talk about their end-of-life wishes, while parents are still healthy. According to Goodman, “Glen Campbell is among [those] who can’t speak for themselves in the end,” she said. “  It’s an emotional story. “Have the conversation as early as you can,” she added. “You give a gift to your own children and tell them what you want when the times comes.” Read more about having the conversation with loved ones on our blog.

Guardianship and Conservatorship is an option

A “guardian” of an adult is a person appointed by the court who is responsible for the personal affairs of an incapacitated adult, including responsibility for making decisions regarding the adult’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence.  A “conservator” is also appointed by the court, and is responsible for managing the estate and financial affairs of an incapacitated person.  In some states, a “conservator” is called a “guardian of the estate” and the “regular” guardian is called the “guardian of the person.”

When we think of legal guardianship or conservatorship, several scenarios typically come to mind: an elderly parent with dementia; an adult who has been severely injured and can no longer take care of himself; and, increasingly, young adults who are making unsafe, dangerous, or destructive decisions. Guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time.  Once established, it can be difficult to revoke.  Therefore, guardianship should only be used as a last resort.

Do you have an incapacitated family member with dementia, or a severe injury or mental illness, or is someone in your family “borderline” or “unstable,” and you would like to learn more about your options for Guardianship and Conservatorship? Have you done a Power of Attorney, Advance Medical Directive, Living Trust, or Medicaid Planning, or do you have a loved one who is nearing the need for nursing home care or already receiving nursing home care? If so, please call us as soon as possible to make an appointment for a no-cost consultation:

Fairfax Guardianship: 703-691-1888
Fredericksburg Guardianship: 540-479-1435
Rockville Guardianship: 301-519-8041
DC Guardianship: 202-587-2797