From Hospital to Nursing Home and Back

advance directive health care proxy long term care power of attorney medicaid medicareNo one wants to go to a nursing home. But it’s unavoidable when patients get caught between hospital policies that require earlier and earlier discharge on the one hand, and the inability of family members to care for elderly or otherwise fragile patients who are being released from hospital care too soon for home care to suffice. So it’s particularly common for older patients who’ve had surgery or suffered serious illness to be sent from the hospital to a nursing home to recover. According to a June 13 NPR “Shots” Health News report by Jordan Rau, “Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients,” this practice is creating a growing problem for patients who don’t receive adequate care at the nursing home and wind up back in the hospital within days, sometimes dying as a result of complications that could have been avoided. The problem isn’t just that hospitals push patients out their doors earlier, but that “many [nursing] homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.” The variable that makes a difference in the outcome is the quality of the nursing home to which the patient is sent. “Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.”

power of attorney long term care planning medicaid medicare nursing home While the problem reported at NPR happens most frequently to Medicare patients, you can take steps now, while you are healthy – no matter what type of medical coverage you have — to protect yourself from the risks of post-hospitalization nursing home care. You can look into the quality of rehab centers or nursing homes in your area, and have  an attorney write a health care proxy for you in which you stipulate which of them you wish to use if you ever need one. This would be particularly important in the event that you were discharged from the hospital while still unable to articulate your preferences at the time. You can also use estate planning documents to establish a fund that sets aside money that can be used to provide you with the best nursing home care possible in the event you need it, including paying for a higher-quality care facility. These are part of the services available to people who establish will and/or trust documents, which take care of planning far more than which niece or nephew gets your cherished marble chess set or your grandmother’s silverware.

Contact me today for more information on how you can protect your own health and well-being by planning your will and estate documents now.

Protecting Rights of the Elderly

massachusetts attorney online estate planning elder law A recent article in The New Yorker entitled “How the Elderly Lose Their Rights” has caused many people to worry about their family and themselves as they age. The article details horrible abuse of elderly individuals and couples by unscrupulous people who become their guardians via the Nevada court system. The article tells the heartbreaking stories of several elderly individuals and couples in Nevada who had these guardians assigned to them without their consent or the consent of their families. After an investigation, individuals involved in the guardianship scams were indicted for various offenses, including theft. These charges, however, will never repair the harm done to the people mentioned in the article and their families. Some individuals died during the guardianship period, and many were left without money or personal belongings. The psychological toll may even outweigh the financial and material losses.

As this article makes the rounds on social media, I see many people range reacting with horror and asking how they can make sure this kind of situation doesn’t happen to their loved ones or themselves. I admit that reading this article is a terrifying example of how the judicial system can fail, and even add to, the abuse of elderly individuals. While the legal system concerning guardianship in Massachusetts differs from that in Nevada, there are ways to address these situations now so that the issue of guardianship does not land in a court later. What I have to say here only applies to Massachusetts law, so if you live in another state, please contact an elder law attorney or association to see how your state handles these matters. It is my hope that even if this law doesn’t apply in your jurisdiction, you will learn enough information that you can be an informed individual and ask the right questions to help you successfully address these kinds of situations.

wills trusts estate planning poa health care proxy advance directive conservatorship guardianshipOne of the first things to know is that in Massachusetts, guardianship and conservatorship are two different legal concepts. In the Nevada case, the guardian was able to have control over both the person’s medical treatment and finances. In Massachusetts, guardianship concerns an individual with a medically diagnosed condition and that person’s ability to take care of daily self-care, health, and safety. A conservatorship involves an incapacitated person who is unable to handle business, financial, and property affairs. The same person may be appointed as a guardian and conservator but they must do so with two different petitions to the court because the roles are separate. In order to be appointed as a guardian or conservator or both, a public hearing in the court is held. The court must first determine if incapacity exists and then determine if the person asking to be the conservator or guardian should be appointed.

Two important documents can protect your rights and interests when it comes to guardianship and conservatorship. A Health Care Proxy is a document that designates your Health Care Agent, which is the person you want to make your health care decisions for you if you are incapacitated. A properly executed Health Care Proxy should guard against someone other than your designated Agent being appointed as your guardian to make your health decisions for you. In addition, while Massachusetts does not legally recognize Living Wills, which are called Advance Directives in this state, you can have one drafted and executed to keep with your Health Care Proxy. An Advance Directive states what kind of medical care you do and do not want in the case of your incapacitation. Having an Advance Directive allows your health care agent to know your wishes concerning medical care, and it shows the court what your wishes are.

massachusetts attorney poa power of attorney health care proxy advance directive living will conservatorship guardianshipThe other document to make sure you have drafted and executed is a Durable Power of Attorney. This document names your personal representative who takes care of your business, financial, and property affairs. You have the option of having a POA that is effective immediately or having one that is effective only upon your incapacitation. Either way, having a POA assures you that you know who is handling your affairs rather than the court appointing someone.

A Health Care Proxy, Advance Directive, and POA are all documents that can easily be drafted for you by an estate planning or elder law attorney. They can also be changed at any time, so you aren’t locked into decisions you make now that you might want to change in 5, 10, or 20 years. To make sure that your state’s laws concerning these documents are followed, please talk with an attorney rather than downloading forms or buying them in a business store. The last thing you want to have happen is for your documents to be invalid and a court to appoint a guardian or conservator that does not fit with your wishes. If you are a Massachusetts resident and would like to discuss these documents further or get them drafted, feel free to contact me. A consultation to answer basic questions is free of charge.