What do actor Mickey Rooney and the late philanthropist Brooke Astor have in common? Unfortunately, the tie that binds these two famous names is that of elder abuse. Rooney, who is now 90 years old with one of the longest careers of any actor, filed a case against his stepchildren in February, 2011 charging verbal, emotional and financial abuse, and alleging that they denied him such basic necessities as food and medicine.

Mr. Rooney testified that the pair not only took all of his identification, but that they also put a lock on the refrigerator and threatened him if he were to come forward. Luckily, he did come forward and recently testified about his experience to a special Senate committee considering legislation to curb abuses of senior citizens.

Brooke Astor was a beloved New York philanthropist, with an estimated estate of $185 million. As Mrs. Astor grew elderly and infirm, Astor’s grandson filed a lawsuit seeking the removal of his father as her legal guardian. The lawsuit alleged that Marshall had not provided for his elderly mother and allowed her to live in squalor. Furthermore, the lawsuite alleged that he had cut back on medication and doctor’s visits, while enriching himself with income from her estate. In 2009, Brooke Astor’s son was convicted of stealing millions from her.

It is estimated that near half a million elderly people are being abused by family, friends, and/or advisors. The crime is known as elder exploitation, and many of the victims are too sick to know that abuse is taking place or to be able to report the abuse. For those that suspect there is an issue, fear of abuse, abandonment, and retribution also play a role in keeping them from reporting their concerns.

An elder law attorney can address many of the issues that senior citizens are facing. If you or a loved one suspects elder abuse, not only should you seek assistance immediately, but consult with an elder law attorney for guidance.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Part of the comprehensive estate planning process is drafting a set of advance medical directives to allow you to control your medical decisions in the event that you can no longer express your wishes on your own. One of the documents is a living will, which allows you to express your wishes for end of life care. But all too often, people turn to online forms or self-drafted living wills for these important documents, and the top three problems that come up with living wills are:

1. Missing in Action

Sometimes family members or medical providers do not know that a living will exists. If they do know there is a living will, they cannot find it. It’s important that your family knows of the document and where to locate it.

2. Poorly Drafted Documents

Many of the online living will forms are extremely vague and do not offer much guidance when it comes to the emotional decisions surrounding end of life care. Why? It is often much more complex than simply removing life support from a patient with no hope of recovery. Most people are unable to imagine many of the scenarios that can occur, let alone how they will feel in advance.

3. Emotional Choices

While your general wishes are there in black and white, there’s much more to it – the human factor. Tough decisions will need to be made, with various if/then aspects. A document may not be able to insert common sense and emotions into the picture – and sometimes that is what is needed when it comes to these decisions.

There are steps you can take to make sure your end of life wishes are heeded by having other estate planning documents in place, such as a Durable Power of Attorney for Health Care, which allows you to appoint a health care proxy to make decisions on your behalf if you become incapacitated.

An estate planning attorney can not only help you draft the legal documents needed, but they can provide direction and advice that makes the documents work toward a comprehensive estate plan that meets your specific needs and goals.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Estate planning shouldn’t wait until your later years – in fact, the sooner you begin making plans, the better – and here’s why…

Increasing Options

Planning for situations that can come up late in life, such as the need for long term care or Medicaid planning, allows you to plan and choose options, rather than forcing your family members to make tough choices based on availability and cost factors. When it comes to Medicaid planning, which is planning for the use of this need-based program to play for long term care, those who are not in immediate need may have the luxury of distributing or protecting their assets in advance, as Medicaid law limits benefits to those who meet strict asset and income restrictions.

In fact, Medicaid law allows a five year ‘look back’ period when they review your eligibility for this program. In other words, they review any gifts or sales that are made in the previous sixty months to make sure you are not giving away or selling your property to qualify for benefits. Any improper transfers during this time can result in a period of ineligibility for Medicaid benefits.

Lowering Costs

Some estate planning tools, such as life insurance, base a monthly rate on your age. When you purchase life insurance in your earlier years, your monthly cost will be lower than the rate of a policy purchased in your later years.

Peace of Mind

All too often in the news we hear of the tragedies that can tear families apart when it comes to end of life decisions. The Teri Schiavo case stands out in this respect, as a 7 year legal battle between Ms. Schiavo’s parents and spouse made national headlines when they disagreed on whether or not to remove the feeding tube keeping her alive.

By completing advance medical directives such as a living will or durable power of attorney, you are able to document your wishes and spare your family the heartbreaking decisions and conflict that can occur in these situations.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Guardianship may enter the life of a senior citizen when they are found to be lacking the ability, or capacity as it is known in legal terminology, to manage their own affairs. A court may be needed to intervene and appoint a Guardian to serve as a substitute decision maker for a person.

There are two types of guardians that may be appointed by a court to make decisions:

• A guardian of the person who has the authority to make personal decisions for the protected person, including decisions regarding health care and living situations; and
• A guardian of the estate who has the authority to manage the protected person’s money and other property.

One person may be appointed as both the guardian of the person and the guardian of the estate.

A guardianship attorney is able to assist in many aspects of the guardianship process, which is a paperwork intensive, court process. Their duties can include:

• Initiating hearings to determine competence;
• Setting up trusts for an adult family member with special needs;
• Annual reporting and accounting of assets and expenses; and
• Being the guardian of the protected person.

Guardianships are often the last choice in helping a loved one who may be impaired due to age or illness. In fact, many estate planning tools are set up to avoid the need for guardianship proceedings. But if the time does come for this intervention, a guardianship attorney helps guide families through protective proceedings.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

It is estimated that approximately 7 million Americans care for a senior relative long distance. Not only do they face the emotional burdens of trying to care for a family member who lives elsewhere, but they face financial burdens as well. Some tips for dealing with this challenge:

1. Assess your parents’ needs.

Observe your parents and their environment when you visit. Look for unopened bills and letters on the counter, or other things that are out of the ordinary, such as food in the refrigerator that is well past the expiration date. Assess your parent’s mobility as well.

2. Look for changes from normal patterns.

You can also enlist the support of friends and neighbors who can contact you if they notice anything unusual.

3. Talk with your parents.

If you think that your parents could benefit from additional assistance, talk with them in a way that does not threaten their independence. You may be able to put together a plan that consists of family and friends willing to help. You might be able to arrange for grocery deliveries from the store or for someone to periodically clean the house. Make sure they know you want to help them stay in their home and independent.

4. Have an incapacity plan in place.

If your parents need assistance managing their financial affairs, a durable power of attorney can be used to appoint someone to take over these tasks, although many institutions require you to sign a new POA annually. A living trust is another estate planning tool that is used to manage property in the event of incapacitation.

5. Hire help.

If your parents require more assistance to be able to stay in their home, then you may have to hire in home caregivers to provide additional help. Home health aides may be needed if medical monitoring is appropriate, while personal care aides can assist with cooking, light housekeeping, and bathing.

An elder law attorney is well versed in the challenges faced by senior citizens and their families. Having plans in place is your best bet to allow your loved ones to maintain their dignity, as well as lessening the burden on their caregivers.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

With a Colorado nursing home now costing over $70,000 annually, we discuss three ways families are handling the catastrophic costs of long term care for their loved ones.

1. Family Resources

Nearly 50% of nursing home residents pay nursing home expenses from their own savings. After they ‘spend down’ their resources, many seniors become eligible for Medicaid, the state-run, need-based program.

2. Medicaid

Medicaid usually enters the lives of the elderly when it comes to paying for long term care. For longer nursing home stays, once personal resources are exhausted, the resident becomes eligible for Medicaid to pay nursing home expenses. Eligibility varies by state, and Medicaid only pays for nursing home care provided in a facility certified by the government to provide service to Medicaid recipients.

3. Long Term Care Insurance

Long term care insurance is a private insurance policy. It is often expensive and many don’t realize that they should have a long term care policy, mistakenly believing that Medicare, the federal program that provides health care to those 65 and older, will pay for the costs. In 2008, Colorado launched its Long Term Care Partnership Program, which is an alliance between the private insurance industry and the state government to help Colorado residents plan for future long-term needs without depleting all of their assets to pay for care. It is designed to encourage and reward Colorado residents for planning ahead for future long term care needs, while saving the state run Medicaid program money.

Long term care needs should be addressed when discussing estate planning needs. Working with an estate planning attorney to plan for nursing home expenses before it becomes a necessity allows you more options in addressing long term care.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

A Durable Power of Attorney is a powerful estate planning tool used to ensure that someone may act on your behalf in the event of incapacity – but how do you make sure that your financial institutions will honor it?

Many banks carefully scrutinize Power of Attorney documents, and rightfully so. But there have been many cases in which a bank refused to accept a Power of Attorney involving one of their customers. In fact, a recent Florida ruling awarded a gentleman $64,000 after his father’s bank refused to release funds to him from a joint account of his father even though he had a valid Durable Power of Attorney document. At that point, a friend of his father’s, who was also listed on the account, withdrew the funds from the account. The bank was ordered to repay the funds to the gentleman as the jury found they should have honored the legal document.

Careful planning may have avoided this situation. Banks are trying to protect their customers’ interests as well as their own. They are concerned they may be sued if the Power of Attorney document is found to be invalid or fraudulent. To prevent this situation, contact your financial institution when your Power of Attorney is executed and ask what is needed to ensure the document is accepted. Some companies may have a standard form to complete, and while it may not be legally necessary, it can make it easier for your agent should the Power of Attorney be needed later, so it makes sense to complete the form in addition to the Power of Attorney document prepared by your attorney.

In addition, may financial institutions and title companies (necessary if you need to sell or refinance real estate) will not accept a Power of Attorney once more than a year has passed. I recently heard of a title company that refuses to honor any Power of Attorney that was executed more than six months prior. Thus, if you’re relying on a Power of Attorney rather than a Living Trust to get through a period of disability, it is safest to execute a new Power of Attorney no less than once a year.

To make sure your estate planning documents are legal, valid documents, work with an estate planning attorney to ensure that not only will they be acceptable when they are needed, but that they meet your needs and goals.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Over the last few years we’ve had a number of people share their frustrating stories from medical emergencies. A mother whose 18-year old daughter was away at college in another state, got into a car accident and landed in the hospital. Mom called the hospital four times and they refused to tell her whether or not her daughter was okay. She had no idea whether she need to hop on a plane and be with her daughter on her deathbed. We have a client whose next door neighbor called the ambulance for his wife and the ambulance driver refused to tell husband what hospital they were taking his wife to. There’s a case I’m aware of in Denver where the husband called the ambulance for his wife and it took him THREE DAYS to find her, as none of the hospitals would admit to having her. What do these cases have in common?

The Health Insurance Portability and Accountability Act (HIPAA) passed by Congress and enacted over the last decade has been more far-reaching than it was initially thought to be. Health providers and health plans are legally required to follow this act, which includes protecting the privacy of health records and information contained in a patient’s file. But did you know that this legislation impacts your family and estate plan?

The legislation has been implemented through the years, with the most significant portions of the Act taking effect in 2000 and 2003. Specifically, HIPAA mandates a health care provider to have written authorization from a patient to release identifiable medical information to anyone other than the patient or the person appointed under state law to make health care decisions on their behalf. This HIPAA regulation not only impacts health care, but estate planning as well, as it can be an obstacle to obtaining information about a patient’s disability, medical condition or capacity. This is a particularly important issue when it comes to determining capacity and when to implement certain estate planning documents that have been prepared for use in the event of incapacitation.

It is important to review trust documents, buy-sell agreements, powers of attorney and all estate planning documents for any situation that depends on a physician’s determination of disability or that requires a person to acquire health information from a doctor or other health care provider. Often a disability or incapacitation provision will require an individual or entity to obtain health care information from a physician to enforce a triggering event such as a springing durable power of attorney.

While many recently prepared estate planning documents will take the HIPAA privacy rules into account, assuming they were prepared by an estate planning attorney, documents prepared before 2003 should be reviewed, not only due to HIPAA, but to ensure they are current with other laws as well as life changes.

Our firm prepares a Universal HIPAA Release for each client, clarifying that the listed persons are always authorized to access your medical information. This ensures that your loved ones will not be shut out if you are the one who lands in the hospital. Everyone over the age of 18 needs to have this document in place.

An estate planning attorney can prepare or review your estate planning documents, such as a Trust, a Will or a Medical Power of Attorney, to not only ensure they take current laws into consideration, but to make sure they meet the needs of you and your family as well.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

A durable power of attorney is an important estate planning tool, and it is one of the most essential components of many estate plans. A power of attorney is a written legal authority given by one party, called the principal, to another, called the agent, proxy or attorney-in-fact, to act on the principal’s behalf.

Since a person making a legal document must have the capacity to do so, there is often language added to a power of attorney in an estate plan that allows it to be durable. To make a power of attorney durable, a specific clause is added to the document to allow it to remain in effect, or even take effect, should the principal become incapacitated.

An estate plan should have a durable power of attorney document to prepare for the possibility of incapacitation due to illness, age or even an accident. As an estate planning document, it is usually specified that the power of attorney would not go into effect unless a doctor certifies that the principal is incapacitated, or upon any other event that can specified within the document. While powers of attorney may not always be accepted by every institution, it is certainly best to have one.

You do not have to choose an estate planning lawyer to be your agent in a power of attorney, but it is important to select someone that you trust. The family member, friend or even the institution that is chosen as an Agent will be acting on your behalf regarding financial or health care issues, and they must act within your best interests and within the terms that are specified in the power of attorney document.

There are other estate planning tools that can be used in place of a durable power of attorney, such as a health care proxy or a living trust, that can manage finances and property later in life. But it is essential to have a tool that allows you to avoid the intrusion of a court ordered process, such as a guardianship or conservatorship, to handle finances should you no longer be able to do so on your own.

An estate planning attorney can work with you to create a comprehensive estate plan that not only allows for the distribution of property upon your passing, but can help manage issues that can come up later in life.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Advance medical directives are written legal documents that allow you to specify the type of medical care that you want in the future, as well as appoint who you would want to make health care decisions on your behalf should you lose the capacity to make these decisions on your own. Advance medical directives are an aspect of estate planning that help direct your assets and decisions later in life, while other aspects of estate planning, such as wills and trusts, distribute or manage your assets after you pass.

Many do not realize that more than just a Living Will is needed as an advance medical directive. A Living Will provides direction in a very limited set of circumstances. Specifically, in Colorado, a Living Will provides your choices on the administration, withholding or withdrawal of specific life sustaining procedures if you are terminally ill and unconscious or incapacitated for at least seven consecutive days. It is used to document your decisions regarding CPR, medications, ventilators, hydration, nutrition, and more and when you would like these measures used, not used or withdrawn.

A Medical Power of Attorney, on the other hand, is broader in scope, as it is a document that appoints a health care ‘agent’ or ‘proxy’ to make medical decisions on your behalf when you cannot do so yourself. Unlike a Living Will, the authority of this document does not only apply to terminal illness or a vegetative state, but in other situations, such as incapacitation due to senility or loss of consciousness after an accident. The scope of a Medical Power of Attorney can be as broad or as limited as you wish it to be. It can provide very specific instructions to your health care proxy or general guidance on your wishes.

Advance medical directives are an essential part of estate planning. Should you not have these important documents in place, your loved ones may be forced into a situation where a court is involved and possibly a guardianship to give someone the authority to make medical decisions for you. A set of advance medical directives, including a Living Will and Medical Power of Attorney, allow you to maintain not only dignity, but a measure of control over your future health care issues.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.