Doug Chalgian, Certified Elder Law Attorney © 2013
As an elder law and estate planning attorney, helping clients understand options and make informed decisions is rewarding. But the decisions they have to make are often difficult, regardless of any advice I can provide. To illustrate the difficult balances that clients have to strike, I offer the following two fictional cases that raise very real and common issues:
Story 1: Dignity versus Safety
Susan and Tom are the two dutiful adult children of “Mom.”
Mom was widowed 20 years ago. She is now 90 years-old and living independently in the house she has lived in for 70 years. The neighborhood where she lives is in decline.
Both Susan and Tom live more than 500 miles from Mom. They talk to Mom on the phone frequently and visit her regularly, with one of them coming to her home at least once a month.
It is clear to Susan and Tom that Mom is slipping. During their visits they have noticed the house is not as clean, Mom is not as clean, and Mom gets confused and forgetful. They are concerned about hazards in the house, about her driving, and with the possibility that she could become a victim of a crime. They have spoken with Mom’s doctor who confirms their concerns, and who tells them that he has suggested that Mom have herself assessed for cognitive impairment, which she has refused to do.
Susan and Tom have tried to broach the subject of getting some help in the home, or moving into an assisted living facility. Mom has had no interest in the topic, and if pushed becomes annoyed and angry with them. Susan and Tom appreciate that it is Mom’s independent nature that has allowed her remain alive and in her own home for so long. They fear that anything they do to undermine her sense of control will have devastating consequences in terms of her happiness, her trust in them, her sense of dignity, and even her will to live.
They come to see me to talk to me about the legal options. I explain that the only way to compel someone to get a medical assessment or to move to an institutional care setting is to become that person’s guardian. This entails petitioning a court to have that person declared incompetent. I explain that if they bring a petition to impose a guardianship on Mom, the law puts a heavy burden on them to prove that Mom is unable to make her own decisions, and that Mom has the right to retain a lawyer and oppose the petition. I also confirm with them that this process can be tremendously divisive among family members, and harmful to the elder’s sense of control and dignity.
Susan and Tom are trying to strike a balance between Mom’s safety and her dignity. I tell them: “I am only a lawyer.” I know the rules, but I don’t know the right answer. It’s their decision to make. To help, I suggest they project themselves out 12 months and imagine that if, in a year from now, their worst fears happened (Mom left the stove on and went to bed, or Mom wandered out into a cold winter night and got disoriented, etc.) would they look back and say: (a) I can live with myself, we respected Mom’s dignity and allowed her to enjoy the last year of her life, or (b) I can’t accept the idea that we had a chance to protect her and we didn’t do it.
Story 2: Quality of Care and Financial Integrity
Mary and John have been married 60 years. John is 83 years-old. Mary is 78 years-old. John is severely demented (Alzheimer’s Disease). Mary has been taking care of him at home but can’t do it anymore. Mary is physically healthy and cognitively in good shape, other than the exhaustion she suffers from as a result of caring for John.
Mary is struggling with the guilt of placing her husband in institutional care. She feels like she is giving up on him and defaulting on her marriage vows. In addition, she is afraid of how to pay for John’s care without impoverishing herself. This is what brings her to see me.
John and Mary have a house that is paid off and about $200,000 in the bank and investments. John has income of about $2,300 per month from Social Security and a pension. Mary has income of about $1,200 per month all from Social Security. They both have Medicare coverage and Medicare supplemental insurance, but not long term care insurance.
Mary has located an assisted living facility near their home, which facility has agreed to take John as a resident and provide him with his own private living area for $4,800 per month. Mary wants to know what options there are for helping with the costs of John’s care. We discuss Medicare, Medicaid and benefits that might be available through the Veterans Administration.
I explain to Mary that the facility she would like to place John in is not a Medicaid facility. I explain that while some veterans benefits could be available to pay for care in this facility, qualifying for such benefits would mean she would have to give up control of most of their investments and savings and the benefit would still be insufficient to cover the costs of his care. In the end, I explain to Mary that if she wants to protect her own financial integrity, she will need to place her husband in a facility that accepts Medicaid, which may not be her first choice, may not be as close to her as she would prefer, and which may not give her husband the same level of individualized attention that she would like. But I explain, if John is placed in such a facility, all of their investments and savings can be “protected” for her needs, along with all of her income and a substantial portion of John’s income.
I explain that, as her attorney, the advice is easy: Place your spouse in a Medicaid facility so that his illness does not cause you to become impoverished, and so that when and if you need help later in life, you will have resources to provide for quality of care options for yourself. I tell her that as a healthy 78 year-old it is very possible that she will live another twenty years or more and that she should plan accordingly.
I also tell Mary that I realize that while it is easy for me to give this advice, easy for me to tell her that she should compromise the quality of care John will receive in order to protect her own financial integrity, John is not my husband and I have not been married to him for 60 years. I get that. She has to decide and let me know what she wants to do.
Someone once said: Getting old isn’t for sissies. My experience suggests that this is an understatement. As these two fictional stories relating very real and common scenarios hopefully demonstrate, clients face incredibly difficult decisions in the context of caring for loved ones as they age.