Preparing Caregivers for the Future: What’s in your Future Legal Tool Box

Presented by D. "Rep" DeLoach III On  February 22, 2019, 8:30 a.m.- 4 p.m., SPC Seminole Campus Digitorium

What the future holds for caregivers and their loved ones is the theme of the Fifth Annual Caregivers Conference at St. Petersburg College. Dementia, including Alzheimer’s disease, is one of the world’s biggest global public health challenges. Worldwide, at least 44 million people are living with dementia, and that number is expected to double by 2030 and more than triple by 2050 to 115 million.

The conference was hosted by the SPC Institute for Strategic Policy Solutions and co-sponsored by Maria’s Adult Day Care Center and AARP Florida.

What’s in your Future Legal Tool Box (Transcript)

Maria Winer, Maria's Adult Day Care Center: Now here's a segment of the conference that many of you are looking forward to, the legal advice. Attorney Rep DeLoach practices estate attorney, elder law, and probate at the firm of DeLoach, Hofstra & Cavonis, P.A. He is one of the hundred attorneys board-certified elder law by the Florida Bar Association out of approximately 83,000 attorneys in Florida. So he's only one of the hundred out of 83,000. We're so lucky to have him here. I think you've been with us for three years in a row? He's always supporting the caregivers. His office is just down the road here in Seminole. He is one of the smartest attorneys I've met in the past 13 years. He wears very well his bow tie, and he is just an amazing, amazing person, and he has an amazing team right there at that table.

Thank you, Rep, for coming again. Welcome.

Attorney Rep DeLoach speaking at the Caregivers ConferenceRep DeLoach: Good afternoon. So, yes, this is the most exciting topic that you will find today. I am absolutely sure of it. Although, the problem is this: it's your future legal toolbox in 20 minutes. Now, 20 minutes, we could spend really about 2 hours per subject, if not more. But we're gonna try to condense it down a little bit. And we're condensing it down into 20 minutes of your future legal toolbox. This is the reality as a caregiver, as a family member, as a loved one, it's very difficult. You know, we hear about the difficulties from the other caregivers here, from Dr. Kate, and you know the difficulties that you go through because there are so many.

It's healthcare issues. It's advocacy. It's stress. It's your own health. It's financial issues. But there's also the legal issues, and the legal issues are difficult to navigate. Because we always say this, what we always say is, "You don't know what you don't know." And when you don't know what you don't know, you can't ask the right questions. And when you can't ask the right questions, you can't get the right answers. And we know that family members come in every day, and they're concerned about their loved ones, and they're trying to figure out what to do, and so when we think about what should you do now or what should you know about the legal aspects of dealing with someone with Alzheimer's or dementia or dealing with a loved one, we're looking actually at your legal toolbox. And really, it's also your future legal toolbox because, ideally, we're doing the planning, of course, in advance.

You know, there are times when people don't actually do their legal planning, and then their loved one gets dementia, and it's too far down the road where they're unable to do legal planning once they've got dementia and once they couldn't understand the legal documents. So we're trying to do all these things in the future. So we're looking at your future legal toolbox.

And the first thing, and this has got to be the most important thing that we would really discuss is your durable power of attorney. So what can we do to prepare for the future as a caregiver, caring for your loved one who has a dementia diagnosis or you think may have dementia, the biggest and most important thing we think about is your durable power of attorney. And a durable power of attorney is basically the ability to represent someone financially and legally. Sometimes people say, well, it's a financial power of attorney, and that's somewhat correct. But it's not just finances. It's legal issues, and there's a lot to be unwrapped in a good durable power of attorney.

Now, as soon as a durable power of attorney is signed, then it's going to be effected. So sometimes people say, "Well, I don't trust my loved one. I don't want to sign a durable power of attorney now because I don't trust them." But as soon as you sign a power of attorney, it's effective, and the person who you name as your power of attorney has the ability to act as soon as the power of attorney is signed. The biggest thing to think about is when you name a durable power of attorney, when you create a durable power of attorney, you've got to trust who you name. Let's be realistic. It's the power of attorney is the power to steal. And so when you create a durable power of attorney, you trust your loved one. You've got to name the right person to do it because they could go and do some horrible things.

But ideally, what a good durable power of attorney is going to do, it's going to be the ability to avoid a guardianship. And guardianships themselves are messy. And we're going to talk a little bit about guardianships a little bit later on, but we try to do powers of attorney in order to avoid guardianships. And it's role, again, it's the key to good planning. If all the other documents that I talk about here are, we didn't do any, we didn't do a living will or a healthcare surrogate or a living trust, those things are all almost expendable as comparison to a good durable power of attorney. It is the most important thing that you can do to prepare for the future as part of your legal toolbox.

So how can a durable power of attorney help? A durable power of attorney can help because it gives the ability to sell a home, to pay bills, legal issues. It's such a grab bag of different things. The power of attorney that we provide at our law firm is about 11 pages long, and it has all kinds of different things that we don't always know what it's going to be useful for, but we're always glad that it's in there because every once in a while, a bank gives us difficulties on a power of attorney. The mom or dad, as they went down to take, use a durable power of attorney to access someone's bank accounts, and the bank says, "Oh, they won't let us do it because these powers are not in the power of attorney." So you have a good durable power of attorney, it's the power to do a lot of things from a legal and a financial perspective.

Also, when we think about VA benefits planning or Medicaid benefits planning, and there's also government benefits that can be used to help pay for someone's long-term care, and generally a good power of attorney is the power to protect assets. So we don't have a power of attorney, we don't have a whole heck of a lot. A good power of attorney can help avoid probate. So when the person passes away, a good power of attorney can have the ability to set up trusts. It has the ability to avoid probate. These are among the many wonderful things that a power of attorney can do and can help bring an estate plan together. There's just so much that a power of attorney can do.

So if we say all the other documents we just threw out the door, if you just had a good durable power of attorney, that's going to be the most important and the most effective thing that you can do as part of your future legal toolbox.

Now, the thing is, where do you get a power of attorney, a good durable power of attorney? And the answer is somewhat self-serving, but I'm going to say you get a good durable power of attorney from a Florida elder law attorney. That's where you go to get a good durable power of attorney. And I say this, you don't go to a non-elder law attorney. You don't go to an estate planning attorney. You go to an elder law attorney. And the question is why?

And the why is this: A few weeks ago, we had a family that came in, and dad had dementia. And they took dad to the law firm down the street. Now, the law firm down the street, their specialty was education law, and they were probably really good at education law, but they didn't know the first thing about elder law. Their power of attorney was legally defective. It was not right. Now, what they didn't do was they didn't go find a good elder law attorney. So they went to just the attorney down the street. The attorney down the street says, "Yes, I can help you out. And I'll provide you a form." But it's not going to be a form. It's going to be the experience the elder law attorney has to help preserve all of the legal aspects of financial, Medicaid, and asset protection planning, probate planning ... You name it, it's a power of attorney is the most important thing that you do.

So you don't go to just an attorney down the street who says they can do this. You don't go to the internet to create your durable power of attorney. You don't pull it up off Legal Zoom or anything like that. It's not going to be good. We saw bad internet power of attorney just the other day. We've had people say, "Well, my uncle up north, he sent me this form, so mom had dementia, so we got a form from my uncle up north." This literally happened, and of course, the uncle up north did not provide a good legal power of attorney.

And then I had one recently, this was fun. I did the husband and wife's wills, power of attorney, a long time ago, and then they came back in years later with their own loved one. Their parents were having some healthcare issues, and then I pulled up the form that they used as a power of attorney, and then lo and behold, it looked like my old power of attorney that I gave them 10 years ago. They happened to retype it and switch the names around. So they had a power of attorney that I gave them about 2007. So they kind of thought they did a good job because they used my old form.

Well, the problem is, the form had changed since 2011. The law's majorly updated. So my old form, which was wonderful back in 2007, wasn't so wonderful 12 years later. So we think about, is the most important thing you can do to prepare for this, is go to a good elder law attorney. Don't get it off the internet. Don't just have your friend hand you one. Don't use my old form from 10 years ago. Even my old form wasn't good enough for all the things that have to be done. So, you know, I just couldn't ring this bell loud enough. If we think about anything else that's done, get a good durable power of attorney from a good elder law attorney.

And maybe that's a little bit self-serving, but we see the problems that bad powers of attorney provide on a daily basis, we see the problems that come up. Now, the other thing about the powers of attorney is you just gotta, gotta get it done. We had one recently where dad had been living with the son for years and years, for about 10 years. And dad finally, at 98 years old, he fails, so he can't stay at home anymore. Physically, he just has to be in a nursing home. But the son never got a durable power of attorney, and it's kind of a nightmare without this because we're trying to get dad onto Medicaid. And without a power of attorney, we cant' get him onto Medicaid, so we might have to go to guardianship for it.

So after the power of attorney, the most important thing that could be done, I'll say, obviously and unequivocally, the next thing we'd look at is your advance directives. And your advance directives are, of course, your living will, your designation of health care surrogate, and the do not resuscitate order. So after you have your power of attorney done, then you'll have your healthcare decisions that you'd want to make sure someone handles.

And then, we have your living will. And of course, your living will is your written statement as to end of life wishes. And those are so very, very important. And we're a big proponent of people getting things where they can, and if you want to get a good living will form, Empath Hospice has some great forms if you want to get a good living will. And a good living will to me is going to be very specific, and it's going to state as many of your wishes as it possibly can. Now, I know it's a good form because I helped write it, so I'm a little bit biased there. But it's a good form, as well.

The other thing is the designation of health care surrogate as part of your advance directives. Your designation of health care surrogate is a great thing because power of attorney is, again, it's the power to do legal and financial issues. But your health care surrogate is the ability to do health care issues, of course. And the old form for the health care surrogate said, "When I become incapacitated, then my surrogate can now make my health care decisions." You go, "Well, that makes sense. I'm in charge of making my own health care decisions until I've been declared mentally incompetent, and when I'm mentally incompetent, then my surrogate can now make my health care decisions."

But what the legislature figured out, they figured out this is actually, it's difficult to determine when someone has actually lost their capacity. Right? I mean, y'all deal with this, Alzheimer's with dementia, and when did dad, or when did your husband, when did your wife, when did they actually lose capacity? Well, actually, they're kind of good in the morning, but in the evening, they do some sundowning, right? So they could make some decisions in the morning, but maybe not later on.

And so it can be difficult to determine when someone has actually lost their capacity. So as of October 2015, they changed it to say is, "Hey, we don't have to have this formal declaration of incapacity for the health care surrogate to take effect." So that's a really nice change, if you haven't updated your health care surrogate since before then. The other thing it does is, the reality is this, is sometimes as people are sliding into dementia, they'd be competent to make some healthcare decisions, but maybe they wouldn't be competent to make all healthcare decisions. The reality is, not all decisions are equal, right? The ability to get a Band-Aid or go to the hospital is one decision, but the ability, the desire to get cancer treatment is a very complicated decision. And the newer health care surrogates could be much more conducive to the family member taking over and helping mom make her decision sooner rather than later.

And one of the things that we think about is you have a living will, you have your health care surrogate, but you don't name co-agents on your health care surrogate decision making. If we can have any kind of hint, or that would be our desire, because you don't want to name two children to make your health care decisions or three children, as we have seen before, because if there's a conflict, who's in charge? I don't know. I don't know who's in charge. It's a nightmare.

And then finally, you would have a, of course, a do not resuscitate order, a do not resuscitate order ... You may be familiar, but a do not resuscitate order is provided from a doctor on yellow paper, and most people place that on their refrigerators, of course. But an attorney does not provide that. It's your living will that would say that you would want a do not resuscitate order, but then it's the doctor that actually provides the do not resuscitate order, the DNRO, that you'd place on the refrigerator.

So we think about if we're preparing for the future, we're trying to make sure that we're prepared as best as we can for incapacity. And of course, dementia. Then we think about revocable living trusts. And revocable living trusts is from a thousand foot perspective is, when you do an estate plan, you generally do a will-based estate plan or you do a trust-based estate plan. In a trust-based estate plan is, it has a lot of different things to it, but basically, you're trying to do things so when or if you die, or when you die, the assets in the trust avoid probate. But also, living trust planning is a great way to do incapacity protection planning.

So if your assets are in your trust and you become incapacitated, then you are removed as trustee of the trust. And then, the next person in line takes over as trustee of the trust. Then now, they're in charge of the money. And because when the person that creates a trust, you know, mom creates the trust. Years later, she gets dementia, she can be removed or she can resign as trustee of the trust. She's no longer in charge of likely to be the great majority of her money. And when she's not in charge of the money, then there's a likelihood that she's not going to be subject to undue influence or the bad daughter, the bad niece or nephew, or the outsider who's trying to come in and steal their money.

When their assets are owned by the trust, that's kind of the ability to have some form of informal asset protection. Mom now is no longer in charge of the money. The daughter, the trusted daughter, is now the trustee of the trust. And once the daughter is trustee of the trust, really, mom doesn't have access to the trust money anymore. And that's just a great way to protect assets. So sometimes, you do living trust planning to avoid probate. But living trust planning is also a good way just to do incapacity protection.

One of the keys, though, is you have to place your assets in the trust. So many people go to an attorney, and they say, well, the attorney says, "How can I help you out?" And the family goes, "Well, I'd like to avoid probate upon my death." And the attorney goes, "Great. Well, I know a great way to avoid probate. You can do a revocable living trust." And the family goes, "Great. We'll do a revocable living trust. We'll avoid probate." But when you create a trust, you have to actually transfer your assets to the trust, and that's called trust funding. So you have to take your assets out of your own name, and you have to place them into the trust. So if it's not in your own name, or if it's in your own name, it's not in the trust, it's not going to be effective, because it's not going to avoid probate upon your death, typically. And then it's not going to be really to the incapacity protection that a revocable living trust can have.

And who would be the trustee? Sometimes we have the people come in and mom's already got some decline mentally. She's got some dementia showing. So if we do create a trust, sometimes we name the daughter immediately as trustee of the trust. Or sometimes we name the daughter as co-trustee of the trust immediately. So mom could be in charge of the money, but the daughter could automatically step in and handle the funds, especially when mom goes downhill. So we're already preparing, we're already thinking about for the future.

So we don't want to be dealing with mom having a dementia crisis and has a big crash, if we can see this coming in the future, we may have mom already resign as trustee of the trust. Or maybe she would just appoint her trusted daughter as co-trustee now versus later on when there's a terrible downturn in health, if mom has a stroke or has a fall, and you're trying to access money. You could try to do this in advance, and try to have someone else appointed as sole trustee or co-trustee now. Those are the things that you can do now.

One of the key things on this, of course, there's little interaction with the power of attorney. And this is part of the confusing aspects to dealing with the legal aspects of the aging process, is the power of attorney ... So someone who has power of attorney does not have access to the trust assets. Only the trustee of the trust has access to the trust assets. So we see this fairly frequently where mom has a terrible downturn in health. She might have a stroke or she might have a fall, and she goes to the hospital. And mom's assets are in her revocable living trust.

And the family's trying to figure out what do I do? How do we help mom? How do we pay the bills? And they'll take the durable power of attorney down to the bank, and they'll try to get access to mom's bank accounts. But if mom's assets are in her trust, the power of attorney does not have the power to invade the trust assets. So as a key, again, we're trying to get mom to resign as trustee of the trust or maybe appoint a co-trustee sooner rather than later.

Did you just say that was one minute? I've just been going one minute, right? Okay. That's all right. I'm almost done. Then, also, the key thing about revocable living ... So, and again, we're thinking about powers of attorney ... The power of attorney cannot access trust assets. Only the trustee of the trust can access trust assets. So you're always going to think about, what can we do to prepare for the future, and that may be changing the trust to have a daughter appointed co-trustee or having mom resign already, just due to what we see in the future.

But the key to a living trust, it's not asset protection planning. Assets in the trust are not protected from the nursing home or protected from VA benefits or anything like that.

And finally, we have guardianships. So guardianships themselves, it's a court process where we're removing rights for incapacitated people. And it's usually not necessary when good planning happens. Not always, but it's usually not happening. So very frequently, if mom has prepared correctly and you've done a power of attorney, health care surrogate, we maybe have done a cross-planning, then guardianship can usually be avoided. But guardianships do happen every once in a while.

So these are things that you need to know what is in your legal toolbox, and guardianships could be one of those things. So a guardianship is needed, what we always say is this, bringing order from chaos. And what is order from chaos look like? Really, it kind of looks like this. Fighting children. Fighting children. We've had this happen very recently. It's called the dueling powers of attorney, where the son takes mom in to us and we do a power of attorney. Then the daughter takes mom in to see another attorney, and they revoke my power of attorney and do another power of attorney. Then they come back and they get it all over again. It's just a lot of fun.

So if anyone's arguing over who's in charge of mom, if anyone's stealing from mom's money, all these different things, then a guardianship could be needed. But it's also, it's when mom or dad or the elder doesn't recognize their own incapacity. We do see that happen, especially when they're younger and they're more mobile. It can be difficult. So guardianship can be used to take away people's rights. It's a last resort, but if you've done good planning in advance, then it's going to be less painful.

All right. That's it. I don't think I have time for questions. No, I do not have time for questions, unfortunately. But I will be over at our table over there with Ashley, and be glad to take questions over there for anyone. It's always great to be here, and so thank you very much for coming out. And we do have ... And if anyone would like to get a free copy of our book, Protect Your Nest Egg From the Nursing Home: Your Florida Survival Guide, we're more than happy to send you a copy of our book. So thank you.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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