The blog reports information of interest to seniors, their families, and caregivers. Recurrent themes are asset and decision-making protection, and aging-in-place planning.
Florida Attorney General Ashley Moody has stated "([i]f you move here, if you retire here, if you come to Florida because you want to live out your golden years, we will make sure you can do that free from fraud and abuse." The Department of Justice reports that 10% of seniors are exploited. Florida is home to roughly 4.3 million seniors.
Florida took a significant step backing Moody's pledge, passing landmark legislation against abuse and fraud perpetrated on senior and disabled citizens. The Protection of Elderly Persons and Disabled Adults Bill is headed to the governor for signature. The new law’s effective date would be July 1, 2021.
The bill has a myriad of protections for seniors and disabled individuals. Key provisions include:
A person who abuses, neglects, or exploits a senior or disabled individual cannot benefit from the victim’s estate.
A person who has been convicted of certain crimes cannot serve as a senior or disabled person’s personal representative.
The Office of Statewide Prosecution can prosecute crimes related to the exploitation of seniors and disabled folks.
A senior or disabled individual cannot be unreasonably isolated from his or her family.
A person cannot seek out a guardianship or fiduciary agency relationship for the purpose of their own benefit.
A person cannot carry out intentional acts that would modify a victim’s estate plan.
An Agent under a power of attorney can petition a court for an injunction against someone trying to exploit the senior or disabled Principal.
Hopefully, Florida will serve as motivation and model for other states to move to further protect seniors and those with disabilities, especially in light of the increase in abusive and fraudulent activities resulting from the pandemic.
Facilities should allow indoor visitation at all times and for all residents except in certain specific circumstances.
There are now fewer circumstances under which indoor visitation can be completely suspended.
Fully vaccinated residents can have close contact, including touch, with visitors as long as they wear a mask and practice hand hygiene.
Visitors should not be required to be tested or vaccinated as a condition of visitation.
CMS continues to emphasize that facilities shall not restrict visitation without a reasonable clinical or safety cause and that nursing homes must facilitate in-person visitation consistent with the federal nursing home regulations.
Visitation must be person-centered and “consider the resident’s physical, mental, and psychosocial well-being, and support their quality of life.”
Cremation Solutions, a Vermont company, offers a creative way to memorialize a loved one, in the form of a 3D-printed head-shaped urn that imitates the likeness of a loved one. The Urns are created from photos and allow unique personalization characteristics.
A full-sized urn approaches 12 inches in height, big enough to hold the cremains of an adult. There are also smaller options referred to as "keepsakes" meant to hold just a portion of the cremains
The 3D-printed Urns do not come outfitted with hair, but hair can be added digitally or in the form of a wig.
The smaller urn option is priced at $600 and the larger option is priced at $2600.
The urns are not limited to using the likeness of a loved one; urns can be fashioned using the likeness of another, such as a your favorite actor, hero, or political figure, including former Presidents Barack Obama and Donald Trump.
"Springing" powers of attorney are often advocated by those who seek to reduce the dangers of a broader General Durable Power of Attorney instrument. In a "springing" power of attorney, the authority conferred to the agent only “springs” into place upon incompetency or incapacity.
Personally, I rarely utilize springing powers. I recently wrote that these instruments:
"can present a challenge to orderly succession of decision-making because dementia and cognitive impairment are not “bright line” determinations. The uncertainty regarding whether the conditions have been satisfied can leave the family powerless to effectively protect assets [for or] from a vulnerable senior, particularly given the prevalence of fraud and financial abuse by third parties. Remember these documents are largely reliant upon third parties accepting them, and if they are rejected, our only real alternative may be court and much more invasive and expensive guardianship/conservatorship.
Delay. Instead of being able to use the power of attorney as soon as the need arises, the agent must get a “determination” of your incapacity before using the document. In other words, someone – usually a doctor – must certify that you can no longer make your own decisions. This could take days or weeks and disrupt the handling of your finances.
HIPAA/Privacy issues. State and federal laws, including the Health Insurance and Portability Act (HIPAA), protect your right to keep medical information private. This means that doctors can release information about your medical condition only under very limited conditions. To certify your incapacity, your agent will need to provide proof that the doctor may legally release information about you to your agent. You may be able to resolve this issue by completing a release form before you become incapacitated. However your agent could still run into problems caused by bureaucracy or by the doctor’s confusion about what is legally required. Navigating these issues could cause serious headaches and delays for your agent.
Definition of incapacity. To state the obvious, if your power of attorney requires you to be incapacitated, then you’ll have to be incapacitated before your agent can help you manage your finances. But what does “incapacity” mean, and to whom? If you make a springing power of attorney, your document will have to define incapacity. Then, when it comes time for the determination, your doctor will have to agree that you meet that definition. But how do you know now what health changes will cause you to need help managing your finances? What if you want help before you become incapacitated as defined by your document? What if you have some good days and some bad days? What if your agent or your lawyer believes you no longer have capacity, but your doctor disagrees? These gray areas may make it difficult, if not impossible, for your agent to help you when you need it.
A Pennsylvania appeals court has added one more significant concern regarding these instruments; a court may utterly ignore the "springing" limitation and confer authority to an agent even when there is no incompetency or incapacity, based upon the "circumstances" in a particular case. The court ruled that an agent may act on behalf of a principal under a springing power of attorney, even if the principal has not been declared incompetent if the parties intended to enter into a general power of attorney as supported by the evidence. Stecker, et al v. v. Goosley, et al.(Pa. Super. Ct., No. 1266 EDA 2020, April 15, 2021).
Mercedes R. Goosley was the owner of a residential property in Pennsylvania. In 2013, she gave one of her six children, Joseph, power of attorney using a boilerplate form that Joseph downloaded from the internet. Unbeknownst to Joseph, the power of attorney required Mercedes to be declared incompetent for Joseph to act as her agent. In 2015, Mercedes moved into Joseph’s home and lived with him for two years under his care. In 2017, at the age of 90, she entered a nursing home.
Without a declaration of Mercedes’ incompetency, Joseph then listed her home for sale and accepted a purchase offer from the Santos family as agent for his mother under the power of attorney. At the time, Joseph’s brother, William, was living in the home. Joseph instructed William to move out prior to the settlement date of March 15, 2018. On February 27, however, William obtained the deed for the residence from Mercedes and refused to proceed with the sale. On March 28, the Santos family filed a complaint in equity against Mercedes, Joseph and William.
Following a trial in January 2020, the court declared the conveyance from Mercedes to William null and void and granted specific performance to the Santos family. Mercedes died shortly after the trial. Judgment in favor of the Santos family was entered and William appealed, arguing that Joseph lacked the authority to act as his mother’s agent and that William needed to protect his interest in the home under Medicaid’s caregiver exemption.
The Superior Court of Pennsylvania affirmed the judgment. The court found that Joseph had the authority to enter into a sales agreement on behalf of Mercedes even without a declaration of her incompetency. The court determined that the parties had intended to execute a general power of attorney as evidenced by the fact that Joseph had held himself out as Mercedes’ agent since 2013 and routinely conducted affairs on her behalf without Mercedes restricting or objecting to his agency. Further, after learning that the 2013 document was not a general power of attorney, Mercedes and Joseph executed a new, general power of attorney and Joseph continued to act as her agent.
The court further rejected William’s contention that he was justified in interfering with the sales agreement to protect his legal interest in the home under the caregiver exemption, finding that he did not care for his mother while living in her home.
At first glance, this decision appears reasonable. Careful consideration, nonetheless, raises questions. How, for example, was the court able to determine that there wasn't a "creep" in the agent's use of authority corresponding with the principal's declining capabilities? What prevents every agent from simply expanding their authority incrementally until the principal is incapable of objecting or protesting? How did the court determine that the agent was acting under the conferral of authority in the earliest days after execution of the instrument, and not acting with the expressed consent of the principal who was independently able to ratify decisions to third parties? What did the court make of the fact that the agent selected the instrument conferring authority, which might have caused the principal comfort in conferring authority to the agent while the principal was still healthy and able to make decisions? For example, in a contractual relationship, the instrument is construed against the drafting party.
Simply, "springing" powers don't provide the safety or protections sought, and present the parties and the estate other challenges. The better strategy in most cases is to confer authority to a person in whom the principal has trust and confidence.
The SECURE Act became law on January 1, 2020 and made several changes to the rules for retirement accounts. One provision is that non-spouse beneficiaries of IRAs, with a few exceptions, must deplete the account within 10 years of the original owner’s death. This applies to all deaths after January 1, 2020. With this requirement, the SECURE Act put an end to the IRA Trust, which allowed IRA beneficiaries to stretch the Required Minimum Distributions (RMDs) over beneficiary’s entire lifetime. Stretching was limited to a child and/or a grandchild or a qualifying trust benefitting a child and or a grandchild.
Many legal experts who analyzed the SECURE Act assumed the new 10-year rule would work like the existing 5-year rule for IRAs whose owners died prior to 72 and that had no designated beneficiary: although all funds had to be depleted within that time frame, no annual RMDs were required. The publication of IRS 590-B on March 21, 2021 (see pages 11-12), suggests the assumption was wrong and that the Internal Revenue Service requires RMDs.
590-B appears to suggest that not only would non-spouse beneficiaries of IRAs have to empty the entire account within ten years, but they also might be required to take annual required minimum distributions in years 1-9. Those withdrawals would be based on the beneficiary’s own age and life expectancy.
The tax implications are significant. Beneficiaries of traditional IRAs would have to pay taxes on their withdrawals, based on their tax bracket. Beneficiaries of Roth IRAs would lose the opportunity for the entire amount to grow tax-free before withdrawing it all at the end of the ten-year period. This, of course, is the federal government's intention; the SECURE Act removes the tax benefits of stretch IRAs and ensures the government a meaningful opportunity to collect taxes as soon as possible.
The IRS rule has not been finalized, and is now open for public comment. Non-spouse IRA beneficiaries should be aware that depending on what happens, they may have to take a withdrawal this year.
RMD's for 2020 were waived, by the way, due to COVID-19.
One of the more common questions clients ask is why they must provide a recorded deed in order to prepare a new deed funding a trust? The question often follows a client forwarding an unsigned deed that a title company provides the buyer of property in a closing package. Unfortunately, these unsigned documents do not provide the information needed to prepare a new deed.
A previously recorded deed is needed for a variety of reasons. The most important of these is that a new deed must include a reference to the prior recorded deed, which reference is an Instrument Number (Book and Page Number in older deeds) best obtained from the recorded instrument.
There are other reasons:
The legal description may have been changed by interlineation at the time of recording;
Limitations or restrictions to further recordings may have been noted on the deed by the Engineer's (Tax Map) office, e.g. "No Further Transfers Without A Survey");
The name or marital status of a party may have been altered or supplemented immediately prior to, or at the time of recording.
The bottom line is that the most recently recorded deed is necessary. Sometimes an attorney can, and will if possible, obtain the deed electronically in those counties that make the records available online. In a few cases, however, the deed is unavailable electronically, either because the county does not make recorded deeds available online, or the deed may have been recorded prior to the date on which the county began online electronic availability. Older deeds may not be accessible in even the largest counties that first began online electronic availability.
You can obtain your deed from either the county recorder or from the title company that closed your purchase or last re-finance transaction.
If you need additional help, email Chris at chris@donohew.com. She can offer additional assistance, including ordering a tax and legal report from an abstracting company if necessary.
A new study recently found that facilities that started the COVID-19 vaccination process earlier were less likely to have new cases compared to providers who started inoculations weeks later.
"Early group" nursing homes had 2.5 fewer COVID-19 infections per 100 at-risk residents after one week when compared to late group facilities. In addition, they had 5.2 fewer cases per 100 after five weeks.
The study, led by Brown University researchers, was conducted using data from 280 Genesis HealthCare facilities. Nursing homes in the early group conducted their vaccine clinics from Dec. 18, 2020 to Jan. 2, while the late group’s clinics were between Jan. 3 and 18.
Rates of hospitalizations and deaths were also down for providers who started the vaccination process earlier. Findings showed that after seven weeks earlier vaccinated facilities five fewer hospitalizations and/or deaths per 100 infected residents.
Brown University biostatistician and co-author Roee Gutman said the findings reveal just how quickly the vaccine starts to work within long-term care facilities.
“We see that the mRNA vaccine is useful and has a strong protective effect relatively soon after it is being administered,” Gutman told McKnight’s Long-Term Care News. The full study was published in the Journal of the American Geriatrics Society.
“It is significant because the original Pfizer trial was not performed on this population and it only examined severe COVID cases. Because residents are tested regularly, we can see that the number of infections is lower than those that vaccinated later and a measure of COVID severity is lower. Second, we see that the mRNA vaccine works on this very old and frail population,” he added.
Researchers said they hope the findings “make it possible for nursing homes to begin controlled efforts to open up to family visitation and alleviate other restrictions, thus reversing the social isolation which has become virtually universal during the pandemic.” As previously discussed on this blog, isolation has been devastating to this older vulnerable population:
A person's home may not be suitable for aging in place, and a person's specific needs may make impossible independent living. Aging in Place Planning is NOT myopically focused on the home as the ONLY care alternative, and should never be seen as suggesting the home as the only available care location. This is obvious to those who understand that the hospital is always an institutional care alternative absolutely necessary for acute or emergent care. Many worry, appropriately, that unhealthy attachment to the home can be dangerous.
There is little question that, especially if poorly planned or oriented, the home can be a dangerous place for a vulnerable senior. Isolation, alone, can be mentally, emotionally, and physically destructive. Short or long term health care challenges, whether physical, cognitive, emotional, or psychological, may necessitate alternatives to the home. Many consider aging in place as properly (even necessarily) considering a community, or other social safety net, as an alternative to blind reliance upon the physical location of the home.
NPR has published an excellent video describing aging in place as a complicated array of alternatives and choices. The video describes well the dangers of over-reliance upon a location without careful consideration of whether the location is appropriate. NPR appropriately suggests that quality of care and quality of life should be the ultimate goals of any care alternative.
Regardless, crisis planning is often made more difficult by lack of pre-planning, condemning an objective to remain at home as long as possible to failure. Institutional care is the obvious option to those who have no answer to questions such as:
How can you manage care in your home if you have cognitive or physical impairment?
How can you access vital services if you are unable to drive?
How can you manage medication?
How can you protect your physical security?
How can you manage/avoid isolation and separation from family and friends?
There are literally an infinite number of possible questions a senior and his or her family or caregivers must and should pose and answer to ensue the safety and afford the autonomy a senior may value. This is the point of planning: planning puts one in the best possible position to identify and implement options that may not be obvious or possible in crisis.
There is also, the "other hand;" simple reliance on institutional care to solve every care or support challenge is as myopic as over-reliance upon a particular home. Institutions are well-suited for meeting some needs, but poorly suited to meet others, and one institution may be better at meeting certain needs than another.
Aging in place planning is not easy, and there is no "one-size-fits-all" result for everyone. But just like any form of planning, considering, identifying, empowering, and ultimately implementing choices prior to need is preferable to reactionary crisis response.
Every journey begins with a first step, and like with any form of planning journey, that first step should be identification and articulation of your objectives, considering fully your specific needs and circumstances.
New Mexico’s governor recently signed a bill legalizing assisted suicide. The “Elizabeth Whitefield End of Life Options Act,” is named for a late state district court judge who died of cancer in 2018, and who became an advocate for assisted-suicide in her final years.
The bill allows licensed physicians, osteopathic physicians, nurses, and physician assistants to prescribe a lethal dose of medication for terminally-ill patients who are deemed capable of self-administering the dose.
New Mexico is now the eighth state to have legalized physician-assisted suicide, along with California, Colorado, Hawaii, Montana, Oregon, Vermont, and Washington. The District of Columbia has also legalized the practice.
The state’s Catholic bishops had strongly opposed the bill, which was passed by the House in February and by the Senate in March, largely along a party-line vote.
Archbishop John Wester of Santa Fe characterized the legislation as “the worst in the nation.”
Archbishop Wester explained his opposition:
“God’s law calls us all to recognize and protect the life and dignity of each and every human being, especially the most vulnerable. This includes unborn children and those at the end of life. We are promised that God’s law will ultimately bring peace and new life, especially to those who are suffering."
The bill requires two licensed health care providers, one of them a doctor, to determine and certify a patient’s terminal illness. Patients in hospice do not require a second confirmation.
If the patient has a history of a mental health disorder or intellectual disability, or if health care providers believe a patient might have a disorder, the patient must be referred for a mental health assessment before a prescription is filled.
Two witnesses must be present for the request to receive a lethal dose of medication and only one may be a relative of the patient. The bill requires a 48-hour waiting period between the prescription being written and filed.
Some amendments were struck before it passed the state Senate. Amendments allowing for insurance collectionreimnbursement and waiving liability for health care providers were removed.
The bill still also contains a state residency requirement, which a 2019 version of the legislation did not include. Some critics warned that the previous bill would have enabled “suicide tourism” where patients would travel from out-of-state to receive a lethal prescription. That bill also allowed for lethal prescriptions to be issued remotely through telemedicine; the current bill does not permit electronic options, and requires instead physical presence.
The 2021 bill does include a conscience exemption for health care providers who refuse to provide a lethal prescription, but it requires them to inform the patient and refer them to another provider who will provide the prescription.
As a lawyer, I welcome options for my clients, but remain frustrated that inconsistency in drafting and implementing legislation might cause denial of these options. Patients are prevented every day from implementing or enforcing their wishes by actual or perceived liabilities of health care professionals and institutions. Protecting patient choice by absolving health care providers of liability for patient's choices seems a clear.
Hester Ford, who was the oldest living American, died at 116 surrounded by her loved ones at home, according to her family members.
The following is from authors Emma Korynta and Tanya Mendis, writing for KHOU 11, in Houston, Texas:
"It's a sad day but it's also a great day in heaven," her great-grandaughter Tanisha Patterson-Powe said. "Although we’re saddened by it, we take great pride in the legacy that she does leave behind."
Ford lived in the same home in Charlotte for more than 58 years. She had 12 children, 48 grandchildren, 108 great-grandchildren, and approximately 120 great-great-grandchildren.
"She was a pillar and stalwart to our family and provided much needed love, support and understanding to us all," a statement from her family posted to social media Saturday evening reads, in part. "She was the seed that sprouted leaves and branches which is now our family. God saw fit to make her the matriarch of your family and blessed us to be her caretakers and recipients of her legacy."
Born on August 15, 1904, in Lancaster, South Carolina, Ford lived through countless historical events. In fact, living during a pandemic wasn't a new experience for her -- she was alive during the 1918 Flu pandemic.
"In times that were troublesome, when there were so many injustices taking place, it was her faith that kept her moving," Patterson-Powe said. When Ford was born, Theodore Roosevelt was elected to his second term as President of the United States. Her family says Ford worked on a farm where she not only planted and picked cotton but plowed the field and cut wood. When she moved to Charlotte in 1953, she worked as a nanny for a Myers Park family for more than 20 years."
Her light shined beyond her local area and she lived beyond a century with memories containing real life experience of over 100 years," the statement continues. "She not only represented the advancement of our family but of the Black African American race and culture in our country. She was a reminder of how far we have come as people on this earth."
Last year, Mecklenburg County proclaimed Sept. 1 as "Mother Hester McCardell Ford Day."Patterson-Powe said her great-grandmother was proud of all she accomplished and inspired countless people in the community."She wanted people to have the type of faith that she had; to be able to believe that anything is possible," Patterson-Powe said.Funeral arrangements have not yet been made.
Ford's family asked the public to reflect on how far the world has come since she was born, saying the family will keep this in mind as they aspire to keep advancing in her name and legacy.
