Election Day is Tuesday. Vote for good Judges.

This week’s blog discussion isn’t focused on seniors or people with special needs.

Election Day is Tuesday, November 3.  I urge you to seek out and consider the bar association rankings of judicial candidates when you vote.

Some bar associations meet with judicial candidates to try to predict fairness as a judge (often called “judicial temperament.)  This is NOT a test on issues or ideology.  It is a judgment of a willingness to listen to both sides and an ability to make tough, sometimes uncomfortable, decisions.  These rankings have nothing to do with Democrat or Republican or third party or Independent affiliations.

The possible rankings are:
Highly Recommended (highest ranking)
Recommended
Acceptable, and
Not recommended (lowest ranking)

Or

Excellent (highest ranking)
Good
Acceptable, and
Not recommended (lowest ranking.)

The reviews may not express a preference between candidates.  Sometimes two or more candidates for the same judgeship will have identical rankings.  (Unfortunately, that occasionally means that only “not recommended” candidates are available for a particular judgeship.)

For my friends in northeast Ohio (where I live,) you can find bar association rankings at:

Cuyahoga County and State Supreme Court: http://www.judge4yourself.com/jcrc-ratings.html (by 4 bar associations and two newspapers)

Summit County: http://youbethejudgesummitcounty.com/ (by the Akron Bar Association)

I was not able to find bar association ratings for other counties.  Sorry.

I urge you to consider these ratings when you vote.  If you live somewhere other than the counties I’ve listed above, I urge you to see if your local bar association has made ratings available for your judicial candidates.

No matter what, please get out, and vote.

Legal Issues when someone has Dementia – Family conflict in Guardianships

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  Today’s installment will discuss the family disputes that can arise during a Guardianship proceeding.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  Unfortunately, guardianship is not often a pleasant experience.  I describe it as Purgatory at its best and Hell at its worst.

In Ohio’s guardianship process, the would-be guardian applies to the probate court asking to be named guardian over a proposed ward.  By making a guardianship application, the would-be guardian has alleged that the proposed ward (frequently a family member of the would-be guardian) is incompetent to handle his or her own affairs.  This allegation of incompetence can provide the spark that triggers any bad feelings in the family to explode.  This is where the sibling rivalry (or any other family dysfunction) mentioned in the introductory post of this series (April 30, 2015) can raise its ugly head.

Upon learning that the would-be guardian has asked the probate court to find the proposed ward “incompetent,” the proposed ward is likely to feel angry.  If the would-be guardian is one of the proposed ward’s children, the proposed ward is likely to feel betrayed.  Other family members who have influence over the proposed ward and who, at the same time, have their own anger or resentment toward the would-be guardian, can help the proposed ward oppose the guardianship application.  If the family members’ anger and resentment toward the would-be guardian is large enough, the family members might try to get the proposed ward to feel anger, resentment, and mistrust toward the would-be guardian.

Imagine for a moment the Smothers brothers, Tommy and Dick.  (If you’re not old enough to remember the Smother Brothers show, look it up on the internet.)  One of the long-running jokes was Tommy’s complaint to Dick that “Mom always liked you best.”  (I know that this example is from show business, not reality, but I can’t use clients’ names in a public article, can I?)  Suppose that Mom Smothers really did love Dick best.  Now, suppose that Mom was stricken by a disease that causes dementia and has not planned ahead with Powers of Attorney.  Dick, being the son emotionally closest to Mom, applies for guardianship.  Tommy, who has always resented Mom’s favoritism of Dick, tries to turn her against Dick by making her feel betrayed because Dick says she’s incompetent to handle her own affairs.  (That’s what a guardianship application means.)  Remember, Mom suffers from dementia.  Mom may not remember that she loves both of her sons.  She may not remember that Dick has been looking out for her for decades.  Because of her dementia, it might be easy for Tommy to exert undue influence on Mom and turn her against Dick.  Tommy might then help Mom oppose Dick’s guardianship application, even if Tommy believes that Mom needs a guardian.  If this happens, Mom has become the pawn in the sibling rivalry between Tommy and Dick.  Unfortunately, this kind of thing happens in real life too.

To be fair, Tommy might feel that Dick is overreacting to Mom’s illness.  Tommy may feel that Mom is not incompetent and deserves to be allowed to continue to control her own life.  Unfortunately, it’s impossible for anyone to know what Tommy and Dick feel in their heart of hearts.  The probate court (and the rest of the world, for that matter) can see only Tommy’s and Dick’s actions.

Because of family relationships (and occasionally, friend relationships,) it may not be just the decision of the proposed ward that determines whether the guardianship application is opposed or unopposed.  It can also be a decision by another interested family member or friend influencing (for righteous reasons or for selfish reasons) the proposed ward to oppose the guardianship application.  This is the tipping point that determines whether the guardianship process feels like Purgatory or feels like Hell.  If the proposed ward does not oppose the application, expect Purgatory.  If the proposed ward opposes the application, expect Hell.

Medicare Open Enrollment is here. Choose your insurance plan wisely.

This week’s blog takes a break from the ongoing series about Legal Issues when someone has Dementia to discuss a topic that is important at this time of year.

Medicare’s “Open Enrollment” period has arrived for 2016 coverage.  To have an insurance plan for 2016 to help cover the 20% of medical costs that Medicare will not cover, a Medicare-eligible person must enroll in the plan of his or her choice by December 7, 2015.  (Open Enrollment is October 15 to December 7 each year.)  The new policy will take effect on January 1.

People who have Medicare available to them have three basic options for medical insurance.  So called “straight Medicare” provides the insured person with Medicare coverage for 80% of medical costs.  The insured person is responsible for the other 20% as a co-pay.  People who do not wish to pay the 20% co-pay can purchase either Advantage Plans or Medicare Supplements.

An Advantage Plan is an insurance policy that pays most or all of the 20% of medical costs that Medicare does not cover.  The amount of the insured’s new co-pay depends on the Advantage Plan that the insured chooses.  Generally, the higher the premium, the lower the co-pay.  There are plenty of other options that change the price and co-pay as well.  (An Advantage Plan actually steps into the shoes of Medicare and pays the 80% in addition to whatever costs exceed the insured’s co-pay.  The Advantage Plan insurance company receives both the premium of the individual insured person and a payment from the Medicare program in lieu of Medicare’s usual 80% payment towards the insured’s costs.  The Advantage Program’s coverage of Medicare’s portion of costs is generally not noticed by the insured.)  Because an Advantage Plan is a “replacement” for Medicare, it can have some limitations in covered services or in approved service providers as compared to “straight Medicare.”  In addition, there are many different advantage plans, each offering slightly different coverage, from which to choose.

When an insured person has a Medicare Supplement (sometimes called a Medi-Gap policy,) the Medicare program pays its usual 80% pays the insured’s medical costs, and the Supplement pays the 20% not covered by the Medicare office.  Medicare Supplements, because they supplement Medicare rather than replace Medicare, do not generally have any differences from Medicare in covered services or approved service providers.  There are many different Supplements.  The differences among Supplements generally is small, but worth examining.

Please be aware, it isn’t necessary to have Medicare additional insurance.  Someone can choose “straight” Medicare in which he or she must cover the 20% Medicare co-pay by himself or herself.    It costs nothing in a year during which that person has no medical issues.  It can, though, without warning, cost lots of money if that person has an accident or needs an operation, for example.  Each person on “straight” Medicare could pay 20% of $0 or 20% of $200,000, or 20% of any amount depending on what happens during that year.  Before choosing traditional Medicare, you must decide whether you wish to assume the risk of a big surprise in health costs during the coming year.

The monthly premium for an Advantage Plan is generally much lower than the premium for a Medicare Supplements.  (Some Advantage Plans have a $0 premium, in fact.)  An Advantage Plan’s limitations on services and providers is the trade-off for a lower premium.  The most glaring difference, though, between Advantage Plans on the one hand and both straight Medicare and Medicare Supplements on the other hand is the coverage of post-hospitalization rehabilitation services.

With straight Medicare and Medicare Supplements, an insured person who has been admitted to the hospital for three days and then needs post-hospitalization rehab can have 100 days of rehab coverage.  Someone on an Advantage Plan may have rehab coverage end before 100 days have elapsed.  An Advantage Plan (because it has rules slightly different than straight Medicare) can determine that rehab is not helping the insured person and can end coverage.  Sometimes the rehab coverage is stopped as early as day 20.  (Advantage Plans used to base their decisions on ending rehab payments on on day-to-day progress reports.  Now, Advantage Plans must now look at week-to-week comparisons or even bi-weekly comparisons.)  Still, rehab can be very expensive, so Advantage Plans have a strong incentive to end rehab coverage as early as possible.

(“Admission” to the hospital rather than “under observation” in the hospital is a very important distinction in the availability of any insurance coverage for rehab.  That issue is not handled differently by Medicare, Advantage Plans, or Medicare Supplements, though.  Consequently, the “admission” versus “observation status” issue is not important to today’s discussion.  I mention it here as a side note because it is an important issue for all people insured through Medicare.)

Even though we are in an “open” enrollment period, someone covered by any form of Medicare cannot simply switch plans on demand.  Medicare, unlike the Affordable Care Act, allows the insurance company to make underwriting decisions on individual plans.  Trying to move to a plan that provides more coverage may require a medical examination and will certainly require answering medical questions.  Generally, I urge people to move to a Medicare Supplement, if they can (as long as the premium isn’t prohibitive.)

If a Medicare Supplement is not available, an alternative is an Advantage Plan or even straight Medicare with a separate Hospital Indemnity policy.  (The cost of an Advantage Plan plus Hospital Indemnity policy is usually less than a Medicare Supplement.)  A Hospital Indemnity policy is subject to underwriting, though.  Someone who exhibits symptoms that are a concern for the Hospital Indemnity insurance company may not be able to get such a policy.

Without considering the cost of premiums, my preferences for medical insurance is a Medicare Supplement.  My second choice is an Advantage Plan with a Hospital Indemnity policy.  My third choice is straight Medicare.  Finally, my fourth choice is an Advantage Plan.  (Because I provide legal services to people who need long term care or that have special needs, my clients have health concerns.  That possibly causes my preference for the broad coverage that supplements provide.)

No matter your preference, seek out a Medicare insurance agent that represents more than one insurer.  Don’t just assume that the person at the table in your local grocery, pharmacy, or department store can give you all the options.  If the person at that table sells insurance for just one company, please consider whether you want to find more options before deciding.

But, don’t go it alone.  Get help from an insurance broker.  These insurance plans are complicated, and there are many different choices among Advantage Plans and among supplements.  Let someone help you figure out your best options.  Their help doesn’t cost you anything.  They’re paid by the insurer you choose.

Choose your plan wisely.

Acknowledgement:  Thanks to Michael Whitaker of Premier Solutions Group in Brookpark, Ohio for helping me understand Hospital Indemnity insurance.

 

Legal Issues when someone has Dementia – Application for Guardianship

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the topic of guardianship.  Today’s installment will discuss the application process for a guardianship action.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  Guardianship is a long process with many potential twists and turns.  The twists and turns can start right at the outset with the guardianship application itself.

In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of  taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))  The determination whether the proposed ward is incompetent starts with an application for guardianship submitted by the would-be guardian.  The application must have with it a statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent.  (In Ohio, there is a form for this medical statement.)  If no health professional will support the applicant’s claim, the probate court won’t even accept the application for guardianship.  If a medical professional won’t support the claim, the probate court won’t bother with it.

If the would-be guardian submits an application with the necessary medical statement, the probate court will have one of its own investigators check out the claim of incompetence.  The investigator will meet with the proposed ward and try to determine whether the person is able to make decisions about his or her health care and finances.  In my experience, these investigators are very conscientious, trying very hard to make a fair determination.  The investigator then reports back to the probate court.  If the investigator reports that the proposed ward seems unable to handle his or her own affairs, the guardianship process will continue.  If the investigator reports that the proposed ward seems capable of handling his or her own affairs, the guardianship process ends.

If the investigator reports that the would-be ward seems unable to handle his or her own affairs, the probate court will set a hearing date on the guardianship application at which the proposed ward can oppose the application.

Legal Issues when someone has Dementia – Guardianship

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  Today’s installment will discuss guardianship.

So far this series has discussed what can happen when the person with dementia has advance directives in place (i.e., has appointed someone to make decisions for him or her through Powers of Attorney documents) and the actions that should be taken if the person does not have advance directives in place but still has the legal capacity to make his or her decisions.  Today’s installment will discuss what may be necessary if the person with dementia does not have advance directives and does not have legal decision-making capacity.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  Unfortunately, guardianship is not often a pleasant experience.  I describe it as Purgatory at its best and Hell at its worst.

In Ohio’s guardianship process, the would-be guardian applies to the probate court asking to be named guardian over a proposed ward.  The would-be guardian can be family member, a friend, or a professional guardian (someone who earns a living acting as guardian, usually for several people.)  If the would-be guardian is a family member or friend, the would-be guardian probably has reason to believe that the proposed ward cannot handle his or her own affairs.  If the would-be guardian is a professional, the proposed ward has probably been referred to the probate court by a social worker or other similar professional.  A hospital social worker may refer a patient to the probate court, for example.  Similarly, an investigator from Adult Protective Services may refer a proposed ward to the court.  Anyone who has knowledge (and usually experience) in the needs of people who have limited legal decision-making ability, such as a police officer, a paramedic, a nurse, a doctor, etc., can make a referral.  If there is not a family member or friend who agrees to act as guardian (and receives court approval to act as guardian,) the court may ask one of the professional guardians who routinely work with the court to apply to be guardian.

The decision on guardianship is a 3-step process (in Ohio, anyway.)  The probate court must determine whether the proposed ward is “incompetent.”  The probate court must determine whether there are “less restrictive alternatives.”  Finally, the probate court must decide whether the applicant is the appropriate person to be guardian.  (There is an expedited process for when a guardianship is necessary quickly, like for an accident victim who suddenly loses the ability to handle his or her affairs.  In Ohio, the expedited process can result in an emergency guardianship or an interim guardianship, but both of these are only temporary.  If the need for a guardianship will be long-term or permanent, an emergency or interim guardianship may be replaced by a “regular” guardianship after the full guardianship process is completed.)