How to Find a Healthcare Advocate

                                                CHOOSING A HEALTHCARE FIDUCIARY         
Now that you are motivated to have legal documents prepared to designate a medical decision-maker in the event of your incapacity you might find yourself asking "whom should I name?"  This question is not uncommon especially for people who:

• are not married or  
• are divorced or 
• whose spouse is deceased or
• who have no children or
• are an only child

There is a solution: a healthcare fiduciary or, healthcare advocate. The healthcare fiduciary can be someone that you compensate to handle the responsibility of supervising your medical care and making healthcare decisions. This individual can be a professional with education and work experience in the fields of social work, medicine or, geriatrics.  For example:

• a social worker
• geriatric care manager
• professional guardian or
• a patient care coordinator. 

     Here are some tips for beginning the process:

1. Interview more than one person as your prospective healthcare fiduciary. Ask the person about their knowledge of medical issues and end-of-life care. Evaluate the person's communication skills and their level of compassion. 
2. Request that the person provide you with a client reference you can call.
3. Inquire how the healthcare fiduciary charges for their services (i.e. hourly rate charges).
4. Ask who will cover for that person when they are on vacation. 
5. Request a written agreement that identifies their duties and responsibilities to you and how he/she charges.
6. Determine how often you and the healthcare fiduciary will communicate and/or visit while you are healthy. If it is just a telephone call, ask if you will be charged and at what rate. 

Once you have selected a healthcare fiduciary, make an appointment to meet with me, your trusted advisor through life, to create your Designation of Healthcare Surrogate and your Declaration of Funeral Designee (that person will make and carry out your funeral arrangements in the event you have not made them prior to your demise). Remember: The benefits of having these documents is that you choose who will assist you when you are incapacitated, you maintain privacy in your life as well as avoid a court supervised guardianship. Don't delay let's create your plan today!

 

TRUSTEE OF SPECIAL NEEDS TRUST VIOLATED FIDUCIARY DUTY

TRUSTEE OF SPECIAL NEEDS TRUST VIOLATED FIDUCIARY DUTY 
All trustees face the challenge of forecasting future needs of special needs trust beneficiaries.  In order to develop an expenditure plan that is reasonable and based on realistic expectation of the beneficiary and their family requires the trustee must get to know the person.  Otherwise, the trust assets will not be used in the most effective way to improve the quality of life and quality of care for the trust beneficiary.

A New York Judge recently issued an opinion that will impact how trustees administer special needs trusts.  It is refreshing to see that there are advocates, including in the judiciary, for people with disabilities seeking to protect them and improve the quality of their lives. Judge Kristin Booth Glen is to be commended. Click here to read about Judge Kristin Booth Glen. The case Judge Glen heard involved a wealthy widow who created a trust for her two sons. One of the sons, Mark Holman, had communication skills of a toddler and could not feed or dress himself. Mark was diagnosed as autistic. He lives in a group home. Mark’s trust was valued at $3M.

The drafting attorney, Harvey Platt, Esquire, and JP Morgan served as Co-Trustees of Mark's special needs trust. Mark received Medicaid benefits. Trust monies had not been disbursed for the benefit of Mark for years but had been used to pay trustee fees. The attorney for the widow petitioned the court (after the widow’s death) to become the Guardian for Mark.  Judge Glen asked attorney Platt when he had last seen Mark. Mr. Platt had not seen Mark for years before Mark's mother's death, and this greatly bothered the Judge.  This co-trustee had no idea what Mark's needs were, his abilities or how he was being cared for by the group home.

 

Judge Glen reviewed the special needs trust accounting submitted by the Co-Trustees and found that it was lacking in several ways and ordered them to amend it. Judge Glen went so far as to rule that the compensation of the Co-Trustees should be reduced or denied for the period of time that they took no steps to spend the trust assets for Mark's benefit.  Click here to read the Mark Holman decision

Here are some tips for trustees:

1. use due diligence to learn about the trust beneficiary
2. schedule at least quarterly meeting with the trust beneficiary and their legal representative
3. employ a care manager with a medical or social work background and experience to guide you in making appropriate disbursement for the trust beneficiary.

Trustees who are asked to serve as a fiduciary of a special needs trust need to determine whether they have the education, training and resources to properly administer a special needs trust. If a potential trustee does not have the resources to make this commitment then they need to decline. Trustees need to stay alert and understand that their responsibility is not just to invest the trust assets.  On a much larger scale the Trustee must fulfill the terms of the trust and use the trust assets to improve the quality of the beneficiary's life.

 

Here are some tips for families who are considering a corporate trustee: 

• Interview more than one corporate trustee
• Ask for references you can speak with (i.e. other families whose special needs trust are being administered by this trustee)
• Have a list of questions or ask your elder law attorney to provide you with questions to pose.
• When the trust is drafted consider including language that will permit the removal of a trustee for failure to establish a rapport with the beneficiary or failure to communicate with the beneficiary.

Our firm encourages our clients to interview potential trustees. In addition, I sit with my clients while they are doing the interviews to help them understand trust administration issues.  At my law firm, we empower our clients to become informed consumers.

Yes, Virgina-You Do Need Legal Planning Documents

"I'm Not Wealthy - Do I Really Need Legal Documents?" Yes Virginia You Do.

Do you feel that you do not have enough assets to justify making a Last Will & Testament, Durable Power of Attorney or Designation of Health Care Surrogate?  You are not alone, and nothing could be further from the truth.

Wealth, like beauty, is in the eye of the beholder.  Everyone's life and family circumstances are unique so your plan should be tailored to you. No matter how small or large your financial worth, be responsible to plan ahead so that your family can have the comfort that only peace of mind can deliver.  Here is my top ten list of why everyone needs legal documents regardless of their level of wealth, age, or gender:

                                     Stephanie's Top Ten Reasons for Creating a Future Plan

1. Parents Cannot Make Decisions for Adult Children: Everyone at age 18 is an adult and by law and can make their own decisions (even if we think our children are immature or, fiscally irresponsible). Parents cannot make decisions for their ill adult children (including children away at college) without a Durable Power of Attorney or Designation of Health Care Surrogate. 
2. Spouses Cannot Automatically Make Decisions for Their Spouse: Because we each have legal rights under state and federal laws, being married does not mean our spouse or partner can make decisions for us when we are incapacitated.  A spouse may own assets that by law cannot name the other spouse as an owner such as an I.R.A., 401(k) or other retirement investment. If a spouse is named a beneficiary on an asset that person has no right to access that account while the owner is alive.  This can present a problem if the assets are needed to care for the incapacitated spouse. A Durable Power of Attorney can be very beneficial to allow the well spouse to make financial decisions for the incapacitated spouse.
3. The Medical Privacy Law: HIPAA is the medical privacy law. It prevents a school or healthcare provider from releasing information to someone other than the patient unless authorized by the patient. That is the reason why the hospital that treated the injured Virginia tech college students after the shooting refused to provide information to parents.
4. Avoid a Court Supervised Guardianship: Once a person lacks mental capacity it is too late for them to sign a Durable Power of Attorney or Designation of Health Care Surrogate. The option of last resort will be a guardianship. The incapacitated individual will face the loss of their privacy, and the time and expense associated with having a guardian appointed.  The Court and the attorney for the Guardian will continue to supervise the Guardian until the incapacitated person dies. A financial institution is not going to permit a family member to access an account regardless of how small the value of that account may be.
5. Avoid the Media:  If Terry Schiavo had legal documents in place naming a medical advocate and expressing her preferences for end-of-life care it could have avoided the battle that ensued in the Court for many years between her husband and her parents.  It also could have prevented the emotional turmoil experienced by her family as a result of the media making her life a forum for a hotly debated ethical issue.
6. Maintaining Family Harmony: If a person does not have a Designation of Health Care Surrogate then the Florida Health Care Proxy law provides that all children must agree on medical decisions. This can be a problem if children have differing views of what is in the parent's best interests. A hospital or, doctor will not place themselves in a position to risk liability if all the proxies cannot agree on the course of action to be taken. By having a Designation of Health Care Surrogate the healthcare providers are only required to honor the decisions made by the surrogate.
7. Making An Investment In Your Future: The cost of preparing an estate and incapacity plan is far less expensive than the cost of a guardianship which, after several years, can cost tens of thousands of dollars.  What is the value of your peace of mind? Like the Mastercard commercial said 'priceless.'
8. Special Needs Planning: You can be generous and leave an inheritance for a family member with special needs without disrupting that person's entitlement to government benefits.  The proper way to plan is by creating a special needs trust either in your Will or Revocable Trust. If you don't plan ahead and designate that relative in your Will or as a beneficiary on the asset they will lose their government benefits. It would also be a shame to disinherit that family member when they could have a better quality of life due to your properly planned generosity.
9. Avoiding Multiple Probates: It is not uncommon for families to assume that property will automatically be distributed to them upon the death of the owner without involvement of a Court.  While a Will may designate the beneficiaries to receive the property the mechanism to transfer the ownership is the Court. If you own real estate in multiple states consider a revocable trust in order to avoid multiple probate proceedings in order for your family to receive the property.
10. Just Do It: Facing the fear of mortality empowers you to be proactive and create the plan and life you desire.

If you're still not convinced, consider these quotes: Thomas Jefferson said "Never put off for tomorrow what you can do today," and Pablo Picasso said "Only put off until tomorrow what you are willing to die having left undone."

At the Law Office of Stephanie L. Schneider PA, we guide you through the estate and incapacity planning maze, so that you leave nothing left undone, and your family will have peace of mind.