One current bright spot is a program designed to de-institutionalize people—out of nursing homes and into less expensive apartments or back home.  Interestingly, this Illinois Department of Aging program is entitled “Money Follows the Person.”  To qualify for this statewide multi-department demonstration program, a person must meet these criteria:

• Resided in a qualified long term care institution for a minimum of 90 days excluding any days paid for by Medicare rehabilitation; and
• Received Medicaid benefits for a minimum of one day; and
• Be 60 years of age or older. 

The goals of “Money Follows the Program” are to:

• Increase the use of home- and community-based long term care services
• Eliminate barriers that prevent or restrict the flexible use of Medicaid long term care funds in settings more reflective of individual choice
• Help ensure the quality of community-based long term care services after transition out of long term care facilities

A good thing about this program is that the Illinois Department of Aging has developed a professional staff to help individuals to move out of nursing homes and back into their communities.  The process starts with a visit by Department of Aging personnel at the nursing home.  Then a transition coordinator or care coordinator will ask questions and verify eligibility.  They will work with the individual to develop a plan and choose the services that best meet the needs.  The care coordinators will assist in searching for a place to live or develop a plan for living in and/or remodeling a current residence.  The goal is to keep it all within the income of the individual. 

Law ElderLaw encourages the State of Illinois to support this program, because it’s good for individuals to be able to live at home—and it’s good for the State of Illinois to provide quality care for individuals in a less expensive setting than a nursing home.

For more information about this program or other opportunities to help individuals live at home for as long as possible, contact us at Law Elder Law at (630) 585-5200.  Or email Bonnie Schradel at bschradel@lawelderlaw.com or me at rick@lawelderlaw.com.

 Rick Law

Very few doctors, nurses, or other health care personnel understand the interplay between the Illinois statutory advanced directives such as the Living Will, Power of Attorney for Health Care, and Do Not Resuscitate Order.  When a person lacks effective advance directives, then a physician can trigger the Illinois Health Care Surrogate Act to create a decision-maker.

Unfortunately, many lawyers consider the health care power of attorney as a “throw-in” document in an estate plan.  In reality, it’s important to consider the hidden definitions for terms used in the statutory advance directives and the Health Care Surrogate Act.

For example, a principal should be very careful when naming both primary agent and successor agents.  Many clients seem to be willing to vest life-and-death authority in persons whom he/she knows are inappropriate.  Individuals will put fear of causing offense within the family above their own welfare. We attorneys must point out that even a successor agent may come to hold your life in their hands if your best agent is “unavailable.”  Even if an individual is a third or a fourth successor agent, if the higher-priority agents are unavailable, then whichever agent is available will make the final decision.  An agent is considered “unavailable” if “the person’s existence is not known; the person has not been able to be contacted by telephone or mail.”

I recommend that attorneys add full contact information of agents into the Power of Attorney. This simple act makes it easier for health care providers to communicate with the highest priority agent during a time of crisis. 

In the Disney classic movie Bambi, when spring arrives, the adolescent Bambi notices that all of his male friends are becoming enchanted by young females of the same species.  When Bambi asks the wise old owl what is wrong with them, he is gruffly told, “They are twitterpated!”

As an attorney serving seniors and those who love them, I have observed that not just adolescents—but rather adults of all ages—can become “twitterpated”.  When seniors come to see us for premarital legal counseling, they are rarely interested in our left-brained, analytical advice regarding senior dating, partnership, and marriage.  Here is some cautionary information that we give to our senior clients regarding marriage and/or remarriage.

It is important to understand that, as we age, it becomes highly likely that the health condition of the two partners will diverge.  Married couples who age between their twenties and early sixties can usually count on relatively good health.  But as the famous actor Jimmy Stewart once said, “After seventy, it’s just patch-patch-patch.”  Seniors who are getting married need to understand that when they say, “I do!” they also are giving an implied and legally enforceable promise that says, “I will be obligated for your medical expenses.”

It is very important to understand that neither medical providers nor the State of Illinois are barred by prenuptial agreements from proceeding to collect for unpaid medical bills and/or reimbursement for Medicaid expenditures. 

The Top Ten Elder Law Attorneys

1.  Rick L. Law

2.  Diana M. Law

We are grateful for our colleagues and we deeply appreciate the professional recognition.

We congratulate the other members of the Top Ten List:

3.  Kerry R. Peck, Peck Bloom LLC

4.  D. Rebecca Mitchell

5.  Eve C. Epstein, Epstein and Epstein

6.  Kenneth M. Bloom, Peck Bloom LLC

7.  Mark B. Epstein, Epstein and Epstein

8.  Janna S. Dutton, Dutton & Casey PC

9.  Joseph T. Monahan, Monahan & Cohen

10. Howard Samuel Berk, IL Disability Association & IL Disability Pooled Trust

At midnight on Halloween 2011, the State of Illinois began enforcement of the tough nursing home Medicaid benefit rules required by a 2006 federal law called the Deficit Reduction Act.  The only good news I can share with you is that the rules could have been far worse.  Thanks go to the advocacy and lobbying of the Illinois State Bar Association (thank you, Jim Covington); the Illinois chapter of the National Academy of Elder Law Attorneys (NAELA); and the Task Force for Senior Fairness (thank you, co-chairs Kerry Peck and Diana Law).  If not for their efforts, thousands of innocent Illinois seniors who have made gifts to family members would have been saddled with penalty periods of ineligibility, causing them the loss of nursing home benefits.

I (Rick Law) never imagined I would become politically involved in the legislative and bureaucratic rules process.  Diana and I are extremely grateful to those on the Task Force for Senior Fairness team who helped us communicate and advocate so effectively before the Joint Committee on Administrative Rules (JCAR), a bipartisan legislative oversight committee comprised of six Democrats and six Republicans who are legislators of the General Assembly.  

• Kerry Peck, Esq. of Peck Bloom provided the team with his wisdom and courage.
• Diana Law, Esq. demonstrated that she has matured into a negotiator who is velvet on the outside and steel on the inside.
• Michael Bauer served as our key political strategist.
• Jessica Bannister of Law ElderLaw served as our Republican spokeswoman and communications angel.
• Jim Haertel, retired Director of Policy for Illinois HFS, sifted the wheat from the chaff.

The Task Force for Senior Fairness would also like to commend Illinois Healthcare and Family Services Director Julie Hamos and Jeanette Badrov, general counsel at HFS.

 

Michael Bauer, Diana Law, Jessica Bannister and Rick Law at the May 2011 JCAR hearing

 

 

 

 

 

 

 

On September 28, 2011, we kicked off the first meeting of the Elder Care, Disability and Mental Health Law Committee of the Kane County Bar Association (KCBA).  The committee, which is co-chaired by Kane County State’s Attorney Joseph McMahon and yours truly, will explore issues that impact the law and lives of clients, attorneys, and paralegals.  We will work synergistically to understand the law, ancillary services and hidden obstacles for those burdened by unrelenting long term care demands.  Our first few months will focus on the issues relating to mental illness.

A few years ago, a desperate man walked into the KCBA office, confronted the staff and demanded an attorney.  When they responded that they did not have the power to do that, he threatened, “I bet if I stab you, I would get an attorney!”  The staff locked themselves into an office and called the police.  That day, they came face to face with mental illness.  It is hoped that this new committee will offer solutions for this type of situation.

In July, I attended the National Alliance on Mental Illness national conference as part of a multi-state team of attorneys representing the Special Needs Alliance .  Each of us presented on topics ranging from civil commitment to special needs trusts and served at a booth run by the SNA.  Attendees shared stories of pain related to a family member with mental illness, such as bipolar disease, schizophrenia, post traumatic stress disorder, major depression, and more.  Often, they would bow their head and almost in a whisper say to me, “My son/daughter is in prison.”  Their stories provide motivation for this new KCBA committee. 

Traditional bar committees focus on the law as expressed by cases, statutes, regulations, and judges.  Our new committee will do that but will add the voices of ancillary service providers and stakeholders.  A perfect example was a recent breakfast that Diana Law and I attended with Attorney Inez Toledo of the Illinois Office of Public Guardian and Legal Advocacy Services, and Linda Voirin, LSW, Victim’s Advocate of the Kane County Attorney’s Office.  One would think that someone representing the prosecution and someone representing the defense would take strongly opposing views.  It was enthralling to listen to their insights and illuminating to hear them agree on shared goals for providing quality care for those affected by mental illness; compassionate guidance for overburdened families; and strategies to achieve early intervention for young adults with mental illness before they become misdemeanor offenders.  Ms. Voirin noted that as parents age, they have difficulty caring for an adult child who suffers from mental illness.  Without adequate legal guidance and social services, the elderly parent cannot manage the adult child’s condition. Both women knew the names of many extra legal resources which play key roles in dealing with mental health issues in Kane County, including:

• The Kane County Sheriff’s Office & municipal police departments
• National Alliance on Mental Illness
• Senior Services
• Kane County State’s Attorney and Public Defender’s Office
• Elgin Mental Health Center and Ecker Center for Mental Health
• Provena Mercy Medical Center
• Association for Individual Development
• Kane County Mental Health Council
• Illinois Department of Human Services
• The judiciary

Many of these organizations agreed to work together under the banner of the Kane County Mental Health Task Force as shown in a document entitled “The 2009 Kane County Mental Health Protocol.” 

We fear what we do not know.  We perceive the unfamiliar as mysterious.  But we can move forward together to get past the fear and learn to understand some of the mental health mystery - so that our community will be served in a far better way. 

The Northern Illinois University College of Law Alumni Council recently recognized Diana as the 2011 Young Alumna of the Year.  The Alumni Council stated, “Her practice focuses on serving seniors and those who love them…Most often, Diana’s cients are burdened by a long term care crisis.  With passion and purpose, she serves the frail, elderly, children with disabilities, and disabled adults.”

The Alumni Council also recognized that Diana is the president of the 1,345 member Kane County Bar Association, and that the Illinois State Bar Association named her Young Lawyer of the Year for 2010.  She was selected to be a “Super Lawyer Rising Star,” and Leading Lawyers Network selected her as a top elder law attorney for 2010-2011.  Along with renowned Chicago attorney Kerry Peck (of the Peck Bloom Law Firm), Diana is the co-chair of the Task Force for Senior Fairness. 

By Diana’s Dad, Rick L. Law, Law ElderLaw LLP

 Pictured below:  Diana receiving the Young Alumna of the Year Award

 Other 2011 NIU alumni award recipients were:  Mark D. Gilwit, Esquire, Alumnus of the Year; Honorable Renee L. Robinson (posthumously), Outstanding Service Award; Honorable Ronald G. Matekaitis, Distinguished Service Award; Mrs. Betty DeGunther, Honorary Law Alumna Award; Chief Justice Thomas L. Kilbridge, Public Service Award; and Rachel Hernandez Hoag, Esquire, Mentor of the Year Award. 

 For more information on the recipients and their awards, click here.

Mickey Rooney

Due to the recent sensationalism of the Mickey Rooney case, we were asked by a reporter with the Wall Street Journal to provide anecdotal stories for an article about how to protect vulnerable seniors from financial abuse.  The key focus was, specifically, to examine the misuse of financial powers of attorney by trusted persons.  Our team reviewed our files and found that we had clients who had experienced substantial loss of assets from the following:

• The bad son
• The bad daughter
• The bad neighbor
• The bad grandchild
• The bad hired caregiver

In each case, we discovered that the abuse of the senior began before anyone would have considered that person legally incapacitated.  Loss of the ability to protect oneself often precedes actual loss of capacity.  The truth of this statement means that senior citizens become highly vulnerable to financial abuse long before the law sees them as needing the protection of “the system.”

A report released by the National Center on Elder Abuse confirms what we found in our research.  The report mentions that “between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.”

One of the most important findings of our internal research was that in every case except for the “bad hired caregiver,” an attorney had prepared the financial power of attorney which a loved one or trusted neighbor used to betray the principal.  I was asked by the reporter, “How could that happen?”  I did not have a good answer to give to her.

The truth is that aside from doctors, it is the bankers, financial advisors and attorneys who may be in the best position to spot the first warning signs of Alzheimer’s or dementia. This article in the New York Times states that “New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements.” Unfortunately, most financial or legal advisors are not trained to look for these signs, and they are not educated about what actions to take if they do start to notice warning signs.

Most advisors will tell you that their first duty is to their client, so what is an advisor to do when a client asks (often quite reasonably) to change their will or power of attorney? “Financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping.” Elder law attorneys such as myself may have an edge when it comes to recognizing the signs of dementia or abuse, but many families don’t think to consult an elder law attorney until it’s too late; other advisors need to be made aware of some of these warning signs.

We as attorneys can make a difference in protecting vulnerable seniors from financial abuse.  We need to have a heightened degree of skepticism when anyone approaches us and seeks to create a power of attorney.  At the very least, we must interview the prospective client/principal independently.  We are not trained to administer a mini mental health exam—but under the new Illinois Rules of Professional Responsibility, we can work proactively to protect vulnerable seniors.

Task Force for Senior Fairness

“Legislators Block Proposed Illinois Nursing Home Medicaid Rules”—that was this morning’s newspaper headline in our state capital.  That headline would not have happened except for major efforts on the part of our legal/political/lobbying team.

Here is a little background:  Last year, I needed to take a break from blogging so we could create a team to lobby in defense of the frail and the elderly citizens of Illinois.  We had not planned on taking a one-year-long blogging hiatus—but when the Illinois Department of Healthcare and Family Services (IHFS) proposed its first draft of Medicaid rules changes in May of 2010, we felt the regulations were critically important enough to give it our full attention.

And give it our full attention we did!  We created the Task Force for Senior Fairness.  The task force included concerned attorneys from all over the state of Illinois and the Cook County Public Guardians Office.  We have worked alongside the Illinois Chapter of the National Academy of Elder Law Attorneys (NAELA).  With this amazing group of people we have been able to achieve far more than we had initially thought possible, including:

• Hiring a capable lobbyist to help us communicate an understandable message to our legislators in the House of Representatives and the Senate, as well as the Illinois Department of Healthcare and Family Services (which administers Medicaid).
• Convincing legislators that while overhauling the Medicaid rules must be done in compliance with new federal law, it would be unfair to make the new Illinois Medicaid rules more harsh than the federal mandate.
• Creating a website (www.DontHurtGrandma.com) to help deliver information to politicians as well as to public interest groups and the average concerned citizen.

Fighting to make a difference, is important and invigorating work, but in many ways it has been like taking on an additional job!

There have been quite a few people who have been integral to our fight for senior fairness, including task force co-chair and renowned elder law attorney Kerry Peck; elder law attorney  (and my own daughter) Diana Law, who served as the task force co-chair and tireless advocate for rights for seniors; senior communications expert Jessica Bannister (a farmer’s daughter who is the webmaster and legislative chair for the Kendall County Republican Women); and our talented and highly regarded democratic lobbyist Michael Bauer.  We hope to feature some of these amazing colleagues in future blog posts, so that our readers can get to know and appreciate them as we do.

And of course I can’t send out a post about what’s been going on over the past year without talking a little bit about my family.  Some of my readers know that I have been an avid horseman for many years, which is why I was thrilled to be able to buy my two oldest granddaughters (5½-year-old Lucy and 4½-year-old Daphne) their first riding helmets this winter!  I can’t wait to start riding with both girls this summer, enjoying some grandfather-granddaughter “horseplay.”

Feel free to contact me at ricklaw@lawelderlaw.com.  I look forward to catching up with you, keeping you informed, and continuing the conversation here at my blog!

The first signs of Alzheimer’s or dementia are not always easy to see.  Families may go months or more before they realize that a loved one is forgetting a few too many things or confused about more than just the new DVD player.  One of the first signs of Alzheimer’s or dementia is also one of the most dangerous—a growing inability to understand and handle financial matters.  Elder care lawyers often hear stories that reveal that one of the first signs of dementia is an inability to understand money, personal finances, and contracts.  Client families need to take steps to protect the family finances when a loved one grows vulnerable to financial manipulation.  There is no legal standard for ‘vulnerability,’ but vulnerable individuals are easy prey for scam artists and just plain poor financial decision-making.  One novel idea used by a family to stop the loss of thousands of dollars being spent by a loved one to obtain supposed lottery “winnings” was to limit the affected person’s checking account balance.  In addition, family members actively created a lottery game to distract and amuse their loved one.  It worked!

If family members live far away, some of the first people likely to notice these telltale signs of dementia are the senior’s own advisors—doctor, lawyer, or financial planner.  Unfortunately, these advisors often don’t always have the ability to take action.  Both doctors and lawyers, for example, are bound by patient or client privilege; even if they want to inform the family of their suspicions, they may not be able to.  Recent changes to Illinois State Bar Association Code of Ethics do allow an attorney to take action to protect a client when there is a reasonable belief that the client has become incapacitated and is in danger.  The American Medical Association also is not insensible to this issue, and has guidelines for dealing with patients who show signs of incapacity.  Unfortunately, doctors are under pressure to spend minimal amounts of time with patients.  Many people are able to ‘fake it’ during a short interview by doctors, lawyers, and financial advisors.  It is extremely important that the healthy spouse and/or responsible adult child get actively involved in pointing out to professionals any abnormal acts of vulnerability.  This may mean doing something that feels very uncomfortable, but is absolutely critical to get the protection needed.  No one will ever know what the family is seeing and experiencing at home unless you tell the story to your trusted advisors and friends.  It is dangerous to keep your fears a secret.  Almost everyone has a loved one who has been or will be affected by the progressive loss of decision-making capacity.

What can families do to recognize the signs of dementia and prevent the financial fallout that often results?  First of all, it should be a topic of family conversation early and often, long before Mom or Dad is at risk.  Talk about the possibility and how it should be handled.  Geriatric care managers and elder care lawyers welcome input from the entire family of their clients.  Familiarity with the entire family gives more options if signs of dementia do start to appear, and an atmosphere of open communication can go a long way toward preventing suspicion and family fights later on.  Attorneys need to know who among the family the client believes are their ‘honest and reliable adult children’ who may be able to safeguard family finances and provide ongoing care and attention to the situation.  Care managers will recommend how best to combine family resources with professional services.  Experienced elder care attorneys and care managers can help the family to plan for future financial and health care needs.  Most families underestimate both the financial impact, emotional burden, and care needs that will be required due to the dementia of a beloved member of the family.

Once a family has discussed options for the future and who might be the best person to take control of Mom or Dad’s finances in the event that they are unable, then an elder care attorney can assist them with the development of appropriate legal documents and Power of Attorney for financial decision-making.  These documents give a nominated agent the power to make financial decisions for the affected loved one.  The time to work on these plans is while the forgetful one still has sufficient capacity to make a Will, Trust, Power of Attorney for Health Care, Power of Attorney for Property, and any other estate protection plans.  Lawyers trained in this area of planning work to make sure that the healthy spouse is not excessively impoverished by long term care expenses.

The onset of Alzheimer’s or dementia affects the entire family, and should be discussed as an entire family.