Finding Meaning in Caregiving: Navigating the Caregivers Legal Nightmare

Presented by D. "Rep" DeLoach III On March 23, 2018, SPC Seminole Campus Digitorium


Caregivers of loved ones suffering from dementia provide an essential service, a 24-7 commitment that often leaves them sleep-deprived, stressed out, and depressed. Persevering with that exhausting reality is the theme of the Fourth Annual Caregivers Conference at St. Petersburg College. The conference offered a full day of experts who addressed the needs of caregivers as well as those for whom they selflessly devote their lives, providing information on medical advances, legal aspects, Medicare coverage, hospice care and more.

Navigating the Caregivers Legal Nightmare (Transcript)

Additional Speakers: 

David Klement, Executive Director, Institute for Strategic Policy Solutions at St. Petersburg College

Maria Winer, Maria’s Adult Day Care Center, LLC 


David Klement:                 Now, let's go to our next speaker who will offer advice on navigating the legal nightmare of caregiving. Mr. D Rep DeLoach the third practices estate planning, elder law, and probate at the law firm of DeLoach and Hofstra PA in Seminole. He is one of 100 attorneys who are board certified in elder law, by the Florida bar, out of approximately 83,000 Florida attorneys. He is a member of the Elder Care Navigation Firm Association, the National Academy of Elder Law Attorneys, the Academy of Florida Elder Law attorneys, Real Property and Probate section of the Florida Bar, and the Estate Planning and Elder Law section of the Clearwater Bar Association. Please welcome, ladies and gentlemen, Mr. Rep DeLoach.

Rep DeLoach:                    Good Morning.

Audience:                           Good morning.

Rep DeLoach:                    It was about 10 minutes ago where I got the text that says, "They're running a little bit early." I'm like, "All right. I'll just head over here." And I literally just walked in the door. So, need a minute to adjust. So let's see here. We've got the clicker right? Excellent. So, we're here to talk about navigating the caregivers’ legal nightmare. And we know it's a legal nightmare. And in many respects, it's not just a legal nightmare. It's really ... There's other nightmares that are going on. It's a family nightmare. It's a healthcare nightmare. It's a financial nightmare. And it's all going to dovetail in many different ways that we cannot expect, just the difficulties.

And the difficulties themselves are so many because most likely, when you're being a caregiver, and you're being a caregiver for a loved one, a family member, or a friend, is you've never done this before. When you've never done this before, it's typically very difficult. And what I always say is ... and when we're talking with families, they're going through difficult situations and they're starting to get into legal nightmare, is ultimately 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 cannot ask the right questions, you certainly can't get the right answers. And so what we're going to talk about today is some things that you probably don't know, some things that you may hear, and some things that you may hear from people who have good intentions, but actually don't even know what's going on. And when you find, when you're out there, when you're dealing with caregivers, when you're dealing with financial planners, when you're dealing with bankers, when you're dealing with the nursing home or dealing with the assisted living facility, your doctors, you name it, is many people will very much have great intentions, but they can also give terrible advice.

And the terrible advice will arrear, just come about in different ways which you may see. But ultimately, we think about navigating this portion of it some things that maybe dispel a few myths or rumors. And just as ultimately is a way of helping you learn things that you don't know. That's my goal here today navigating the caregiver’s legal nightmare. And the topics we're going to discuss is our common scenario. There's a common scenario of what we see on a daily basis as an elder law attorney and as a elder care navigation law firm, the things that we see, because we know what many of you are going through. And it's also going to be a ... discuss how we see and how we view the lens of being a caregiver, as in the things that you've probably gone through or you may be going through one day. We're going to talk about durable powers of attorney. We're going to talk about advance directives. And later on, there's going to be another speaker who's also going to talk about advance directives.

Then also, there's going to be paying for long-term care. So all the different dove tails of the different things that you may or may not be going through that you could go through some day. But ultimately, it's a matter of the things that you could be going through by dealing with powers of attorney, healthcare surrogates, living wills. And it obviously is really how do you pay for long-term care because paying for long-term care can be very expensive, if you haven't figured that out already. So we'll talk about that and just take our time. So [inaudible 00:04:46] common scenario. Our common scenario is a frantic phone call, typically from a daughter. And the daughter basically says this, is that, "My mom, she's 85 years old. She has just fallen. And she has just broken a hip." And the daughter is in a very difficult situation. She's never done this before.

And she doesn't really know what's going to happen next. And in this situation, mom has been discharged from the hospital, and she's gone to rehabilitation in the skilled nursing facility, the rehab center. Ultimately, even before mom fell and broke her hip, mom's health and mental picture had already been declining. So some of you may have already been experiencing something like this. But mom's kind of been going downhill. She's been slowing down. She's had some dementia which is getting in the way of things. And she's fallen now. And she's broken her hip. And what we know is this is 60 percent of all entrances into the skilled nursing facility is through a fall. It's just such a large percentage of all people going into getting the skilled nursing. It's a fall and break a hip, or they break a hip and fall, or even worse. There are worse falls than that.

But ultimately, this is part of the entering the legal nightmare. And we're going to think about what questions that the daughter's going to have. The daughter's the caregiver. The daughter may be the power of attorney, or may not be the power of attorney. But ultimately, the daughter's going to have a lot of questions. So what are these questions going to be? These questions going to be are: Am I power of attorney? Am I healthcare surrogate? Can I make my mom's healthcare decisions? What about her living will? What about Medicare?

Wait a minute, she's in the skilled nursing facility. How is that going to be paid for? So what about Medicare? Or does mom have a Medigap policy? Does she have an HMO? How long is she going to stay in the skilled nursing facility to get rehabilitation? What about the care that mom is receiving in the skilled nursing facility? What happens ... is mom going to be able to go home after she gets stronger from the rehabilitation? Is she going to be able to go home or can she go to assisted living? What happens if she has to stay in long-term care? How do we pay for it? What about Medicaid? What about VA benefits? What about her will? What about her trust?

All of these different things that the family has typically never gone through before. And you're typically thrust into this scenario. What we typically would think is that mom, she did not want to leave her home. She wanted to stay at that home for as long as she possibly could typically. And then the daughter said, "You know, I want to make sure my mom stays at home for as long as she possibly can." And mom didn't really want to leave home anyway. So the daughter did not want to push her out the door to try to get her into an assisted living facility maybe. But ultimately, this is kind of thrust upon the situation due to the fall, the hip fracture, and now mom is in the skilled nursing facility getting rehab.

And I say this is all part of the caregiver's legal nightmare. So part of the legal nightmare is what do we do next and what are the things that should be considered as far as preparing for this legal nightmare? And if this hasn't already been done, then what should be done, and what things that we all need to think about when we're going through this legal nightmare together. The first thing we think about is, by far, the most important thing that we really could be considering is creating the durable power of attorney. Last year, at this seminar, I gave a talk for an hour just on powers of attorney, health care surrogates, and living wills. But even just really powers of attorney.

So we know that the depth of the conversation of the power of attorney is so very important. But a power of attorney, simply put, is the power to make someone's legal and financial decisions on someone else's behalf. It is the most important document, arguably, the most important document that anyone can create when they're trying to deal with their caregiver, trying to care for their loved one because the power of attorney itself ... we always say this, is really it's going to be worth its weight in gold. Because we don't necessarily know how helpful the power of attorney is going to be, but we just know if you need it, it's just so very helpful. So creating a power of attorney itself is just part of preparing for the future.

And as soon as the power of attorney is created, it is effective. So as soon as the power of attorney is signed by mom or dad or what have you, then it's effective at that certain time. So sometimes people say is, "Well, I don't want to give up my powers. I don't want to give up my rights to my daughter." And sometimes people say, "I'll sign the power of attorney when I need to sign the power of attorney." We hear a few chuckles. Right? People put it off. And now, "I'll sign it when I need to sign it." But ultimately, the power of attorney is effective when it's signed. We hope that we never use a power of attorney. We hope we all live a long healthy life and maybe we don't wake up one morning. Right? But ultimately, the power of attorney itself is so very important. As soon as you sign it, it is effective. It was a few years ago the Florida statutes put into effect what's called a "springing power of attorney".

And a springing power of attorney, it sprung into effect when mom or dad became incapacitated. But those were basically taken out of the statutes in 2011. So basically, you create a power of attorney, it's presently active as soon as signed so you don't need to get letters from doctors, letters from ... saying that mom is now incapacitated. And we see that on a daily basis that the daughter went down to the bank to register the power of attorney, and the bank says, "We need to get letters of incapacity that mom is incapacitated." And so, the power of attorney is effective as soon as it's signed. So the bank doesn't know what they're talking about. We see that on a daily basis they're going to give the powers of attorney, who are generally referred to as the attorneys of fact, they're going to give them a lot of trouble.

But as soon as you sign a power of attorney, it's going to be effective. And that means the daughter can go out and help mom or dad in various effects, especially as their mental abilities are declining. One of the most important things that a power of attorney can do is it can help avoid a guardianship. And a guardianship [inaudible 00:11:08] ... we've talked about how the difficulties that we go through, and some of you may have experienced the guardianship process. If you're dealing with someone that has declining capacity, and they may be taken advantage of by other people, or they may be wandering the streets, they may not be compliant in their healthcare directive, sometimes, you have to seek a guardianship. But mostly, when you create a good durable power of attorney, you never really need to create a guardianship, for the most part.

The power of attorney itself is a delegation of your legal rights and your financial rights, but it doesn't take your rights away. So sometimes we've had people say, "Well, I'm power of attorney. I can make mom's decisions." Well ultimately, it's up to mom. It's going to be mom's decisions. And even if she has capacity ... even if she does not have capacity, the power of attorney's not going to overrule mom's decisions. But what we may see a very common pattern is that eventually people kind of give up their roles, and gives up their ability to sign their bills or pay their bills, what have you. And that's when the power of attorney can more effectively take over. So you create a power of attorney with the hope that you avoid the guardianship procedure, at least in most respects.

And we know that guardianships are not avoided all the time, but a good power of attorney is fairly effective and very effective in avoiding the guardianship itself, because a guardianship is going to court. It's a court process. A bunch of attorneys are involved. It's fairly expensive. It's fairly time consuming. Murray is an expert in these areas. And ultimately, it's just not a very good way to manage someone affairs, while having a good durable power of attorney is very important. Generally, you can avoid that for the most part. What we do day about durable powers of attorney is get an attorney to get one. Go to an attorney to get a durable power of attorney. And actually, I really should change the slide. I say not go to an attorney to get one, go to a good attorney, not just go to a good attorney, what I'd really say is go to a good elder law attorney. And that's not trying to be self-serving, but I had a client come in last week. And they went to an attorney to get a power of attorney for mom.

And the power of attorney was less than six months old. And this attorney obviously was not on top of their game. The power of attorney statute changed in 2011, October of 2011, and this attorney had not updated the power of attorney form since October of 2011. So they haven't updated their form in over seven years, and you're going to tell me this is a good attorney. And it's not. So it's not just go ... don't download the form on line. Do not get it from the nursing home that says, "Oh, here's a power of attorney form," because you will not be able to rely on that later on. So it's go to, not just an attorney, go to a good attorney, not even go to a good attorney, go to a good elder law attorney.

And we're going to talk about why you need to do that. But ultimately, you just have to have the best form possible because it's going to be worth its weight in gold. So how can a power of attorney help? A power of attorney can help in so many ways. And these ways are not necessarily we're able to predict all the wonderful ways that a great durable power of attorney would be helpful. It's the power to sell home, and it's the power to pay bills. And we've had people say, "Well, I don't need a power of attorney. I'm on all of mom's bank accounts. I'm on all of mom's bank accounts. I can pay her bills." But a power of attorney is much broader than that. We don't even know all of the effects of what it could do, but ultimately it's more than just paying bills. It's helping protect assets. We're going to talk a little bit about asset protection later on, Medicaid and VA benefits, but these are very important things that a good power of attorney can help protect the assets from the nursing home. It can help make mom's assets last longer, so she can get better care.

It can help avoid probate for heirs. So if we had an informal poll of the audience, if you want your assets to go through probate when you die, I don't think we'd have many people raise their hand. But a good durable power of attorney can help the family avoid probate upon mom's passing. There's the power to create trusts. The power to create special deeds that can be contained in a good durable power of attorney. In a bad power of attorney, you can't do any of these different things. That's why you go to a good attorney to do that, to help bring a good estate plan together. The power to create trusts that can be contained in a good durable power of attorney, is the power to help eliminate probate, bring the estate plan together. Again, it's just so many things that can be done as long as you have a good power of attorney. So I say much more. We don't know all the great things a power of attorney can do: the power to protect assets, the power to protect mom, it's the power to set up trusts, you name it. It's just such a great thing.

So go to a good attorney to do that if I haven't said that already. The advanced directive, so we're thinking about is, again, in this nightmare scenario where mom has fallen and she's now in the skilled nursing facility, then we can think about besides the power of attorney, we're thinking about the advanced directives. And the advanced directives is going to be your living will, the designation of healthcare surrogate, and the do not resuscitate order. So with the living will itself, it's of course going to be a matter of writing down and letting your family know what your end of life wishes will be. There's going to be another speaker who's going to talk a lot more about living wills. But just in general, we'll go into detail a little bit.

The designation of health care surrogate is a great thing. And then, the do not resuscitate order, we'll go into the detail, but these are called advanced directives, and these are all part of preparing for your incapacity for the future. As part of the living will ... The living will is very important. A living will is important in many respects. So what is a living will? Of course, a living will is a written or oral statement as to your end of life wishes. So we always say is you should place your living will in writing that you would get a good form and place a living will in writing. But ultimately, sometimes people don't want to place in writing, say, "I trust my daughter. My son will make my healthcare decisions the right way at the end of life." So living will is not just what you have on paper, what you have set pen to paper. But it's also an oral statement as well. So if you'd say, "Son, don't ever keep me alive if I'm in a vegetative state," or something like that. That's also a living will. We would generally rather it be in writing, but just the past couple of weeks, I had a few of my clients, they say, "You know what? I trust my daughter, and I don't want to place my wishes in writing because she knows what my wishes are."

Okay. Well that is a living will as well. We generally, again, we'd like to have it in writing. But if sometimes people don't want to place it in writing, we're not going to make them do it, of course. It's their wishes, and a living will can be an oral statement as well. So how to create one, again, is you basically ... A living will is going to be signed in the presence of two witnesses. If you do place it in writing, that's the best way to do it, and what to do with it. And what to do with it is very important, but what you do is you share it with your health care surrogate in the first place. We know there are probably times in this ... people in this room may have done this, where they have been named as a health care surrogate. And sometimes, they didn't even know they were named as the surrogate.

So moms fallen. She's broken the hip. Well, who's the one that's making mom's decisions? Oh! Well, I guess I am. We know that that's happened on multiple occasions. So what you do with your advanced directive is you share it with your family. You share it with your doctor. And then hopefully, they would be able to spread it around at the right time regarding making end of life decisions. Making your living will as effective. Really, what they say, as the study after study will say is a living will itself is most effective when you've talked with your healthcare surrogate about your end of life wishes. So you can have a great living will that says exactly what you want to end of life, whether you'd like to have resuscitation, whether you want to have antibiotics at end of life, or whether you'd want to be on a feeding tube, or anything just to that effect. But the best thing that you can do is talk with your surrogate about what your wishes are. So, what we always say is it's not necessarily about what's in writing. That's very important. But it's even beyond that because you've let your family know what your end of life wishes are.

There's going to be a lot about the conversational aspects of living wills later on. But we think about talking with your surrogate. Where would you want to receive care? And I think most people would say that they would not want to receive care in a nursing home, of course. But there is a matter of could you ever move from your home? Could you be happy in an assisted living facility? And assisted living facilities can be really great care. There are spiritual aspects. Do you have any spiritual aspects that you want to know? That can be communicated to the family. These are very personal and deep issues. Things that you'd want to share. And what have they seen in their life? Many people have dealt with end of life wishes with their family members already where my husband died of cancer, or my mom went through terrible end of life states. And your life experience is you can share that with your family members as to who ... part of what your wishes are.

So it's not just, again, putting it down on paper. But it's sharing your life experiences, and how has that made your opinions form. I had a client who was in a couple of weeks ago, and her husband died after a long bout of cancer for his two years, a bout with cancer. And what she knew is she said, "Whatever he went through, I do not want to go through." So having that down on paper would be important, but it's also really is about sharing what you'd want with your family. Make sure everyone has copies, and have a good living will. Our office, we use a variation of the form, the empath choices for care living will, and Tracy Christner is going to be talking about empath choices for care and the living will specifically. But these are the ones that I fully endorse, partly because I helped draft it, but ultimately it's an amazing document.

The designation of health care surrogate is who would make your healthcare decisions. And I used to say, I always really would kind of say, "Who'd make your healthcare decisions if you're not able to make those decisions yourself?" But that's not necessarily the case anymore. The healthcare surrogate used to be what we would generally refer to as a springing healthcare surrogate. The healthcare surrogate only would go into effect when you became incapacitated. And you generally needed a doctor or two doctors to declare that you were incapacitated. But the law was updated in 2015 in September. And actually, the legislature did something great, is they changed the law. And they said, "The healthcare surrogate itself is not going to be a springing healthcare surrogate." It says that if you initial next to a couple of areas, then the healthcare surrogate could be effective as soon as it's signed.

The way it used to happen would be is this. In our nightmare scenario, mom has fallen and she's broken her hip. She's gone to the doctor. She's gone to the hospital. And then, the daughter goes up to the doctor and says, "Hey, I'm the healthcare surrogate. What's going on with mom?" And the doctor says, "Well, you're not the healthcare surrogate." And the daughter goes, "No. I'm the healthcare surrogate. It's right here on paper." And the doctor says, "Yes, but your moms not been declared incompetent yet. So therefore, the healthcare surrogate is not in effect. So therefore, I can't talk with you." So what they did is they did the update of the statutes, said if you initial next to one area, then your healthcare surrogate that you nominate can now talk with your doctor. So you don't have to have that formal declaration of incapacity.

So it's just a great little update. The next thing they did is they said, "You know what? You can initial next to another area it says you don't even have to be declared incompetent in order for your healthcare surrogate to make your decisions." What we know about dementia, especially the people in this room have probably experienced, is dementia itself is a slow decline. Or typically, it's a slow decline where sometimes you're going to be competent, sometimes you may be incompetent. Sometimes you may be good in the morning, sometimes you may not be competent in the evening with sundowning. So it's ultimately it can be a long decline. And you can sign a document says, "I don't care if I haven't been declared incompetent by two doctors or not. I just trust that my daughter is going to make the right decisions for me." Sometimes, for instance, medical decisions can be very complex. And mom may be competent to make certain decisions about her own healthcare, but what about getting cancer treatments at the end of life, or getting radiation therapy or chemotherapy. Maybe mom would not have the capacity to make these very complex decisions.

So the designation of healthcare surrogate had a great update in 2015. And it can be presently active, which is a wonderful thing. What we generally say is we do not do co-agents on our designations of healthcare surrogate. We'd hate for people to disagree at end of life. So when you're making your healthcare surrogate, choose the right person. And then just name alternates. If your daughter can't do it, then name your son, then you name your other son, then you name your grandson. Keep on going down the list if you need to. But ultimately, it's we do not do co-agents because we do not want your surrogates to disagree on end of life wishes, on removing life support for instance. We don't want to do that.

And then the revocation of healthcare surrogate itself, it was ultimately healthcare surrogates can be revoked. It's best to do it in writing. But frankly, you can do it in an oral statement as well. Say, "I revoke my healthcare surrogate." And we hope that that never occurs, at least in the wrong way. Next is the do not resuscitation order. So a living will is an oral or written statement as to your end of life wishes. But the Do Not Resuscitate (DNR) order itself is an order from a doctor. It's going to be a yellow paper signed by a physician. So this is not going to be an attorney document. Power of attorney is the attorney document. We generally think your living will and health care surrogate should be done by a good attorney as well. But there are other alternatives. But the do not resuscitation order itself is not by an attorney. It's going to be issued from the doctor, and it's going to be on yellow paper. And it's not a living will, of course. A living will is a written statement or oral statement that you would maybe want to have a do not resuscitation order.

But the living will itself is not a DNRO. And from the biggest thing is this, is the general effectiveness of CPR. And I know this is a big thing of mine. And we think about living our lives and trying to live a nice healthy life, but ultimately we know this about CPR itself. We now have had clients that are just, they're doing terrible, they're in the nursing home or the hospital, yet they do not have a do not resuscitation order. We know that they're right to the end of their life. And if you have a heart attack, and that can be a peaceful way to go, but sometimes people refuse to do DNRs, or they didn't talk with their doctor about them. But ultimately, this is a very sobering fact, is that a healthy person who receives CPR has a less than 15 percent chance of full recovery. So statistically speaking, the chance of that very healthy person getting CPR and fully recovering is actually very slim. And for someone who is of older age, that someone has multiple health issues, the chance of full recovery is less than 2 percent statistically.

So having a do not resuscitate order is so very important, especially if someone is going downhill, declining with dementia has low quality of life. They've talked about it with their family. But having a DNRO is so very important in so many respects, because receiving resuscitation at the end of life can do so much damage to your body. It can break your ribs, cause internal bleeding. They generally immediately put you on ... you're intubated after that. And you're going to be put in a medically induced coma, just all kinds of fun things that can be avoided if you've communicated with your healthcare surrogate. Then your healthcare surrogate knows, at the right time, to create the do not resuscitation order. And again, the living will is not a do not resuscitation order. No one cares. If you had a living will that says, "I do not want to be resuscitated." No one cares about what that says without the doctor's order itself on yellow paper, which better be in the hospital file, the assisted living file, place it on their refrigerator, give it to the nursing home. These things are very important and they do not travel well. So make sure you do them wherever the elder is living.

Next is part of ... when you think about preparing for ... So, you've prepared for your incapacity with your durable power of attorney and your designation of healthcare surrogate, your advanced directives. So what about this? What about paying for long-term care? So this is really ... This is very much part of the legal nightmare because there's just so many aspects to figure out how to pay for it. We've got Medicare. We've got VA. We've got Medicaid, all the different aspects to this. But we know is this, is paying for long-term care is expensive. And how long is someone's money going to last when they need care? So, we'll spend some time talking about the various programs or various ways to pay for this. This is part of the great difficulty. And I say it's difficult because it's difficult for me as an elder law attorney.

I know the rules for these programs backwards and forwards. It doesn't mean it's going to be easy for any of the family members to go in through it, much less myself, my staff, because there's no such thing as an easy VA application. There's no such thing as an easy Medicaid application. That's also very difficult. But we know is this is long-term care. It's expensive. If you had a home healthcare company and the home healthcare company charged $22 an hour, which is kind of about the going rate, and $22 an hour if mom could stay at home. And you say, "I want to keep mom at home for her entire life." All right. Then if you needed 24-hour care at $22 an hour, 7 days a week, 365 days a year, that's over $180,000 a year. So we know staying at home can be very difficult. And many of the caregivers try to do this, but we know it's just difficult. Where sometimes assisted living facilities can be a great place to receive care. So if you can't keep someone home. If we're dealing with someone that's dementious, someone that has dementia, someone that's exit seeking, someone that can be very difficult. Maybe keeping them home just is not the best option, not even from a monetary stand point.

Glenn Campbell, you maybe saw his widow speak, she put him in an assisted living facility in order to receive care. Money was not an issue for them, but she still decided that she wanted to place him to an assisted living facility just due to various care angles. But in assisted living facility, you may know this, but there are different type levels of assisted living. We generally say assisted living costs anywhere between two to six thousand dollars per month. It can even be a little bit more expensive than that. But kind of from a range, just a ball park range, mostly from two to six thousand dollars per month. This is not going to be secure dementia unit. It's going to be "regular assisted living".

Where secure dementia unit, such as Arden Courts for instance, there's the dementia assisted living facility that's generally from three to seven thousand dollars per month. So we know care is going to be very expensive, and especially if we get to the end with the nursing home. So the nursing home is what we refer to as the most restrictive environment. All of us in our lifetime, we want to live as independently as we possibly can for as long as we can. And we, most of us, would say we'd never ever want to end up in a nursing home. But if we did have to end up in the nursing home, that's obviously where it's going to be the most expensive. It's the most confining environment. It also has the most medical care available. And that's where it's also going to be most expensive, of course, ranging from about eight to eleven thousand dollars per month in the area. So you can shop around. As you can see, there are some differences between them.

And you know, our nightmare scenario where mom fell and she's in the skilled nursing facility, one of the first things that people start to think about in paying for long-term care ... Okay. Mom's in the skilled nursing facility. How long is her health insurance going to pay for that? So, we'll talk about long-term care and Medicare. So what about Medicare? How's Medicare going to be helpful to pay for mom's stay in the skilled nursing facility? And of course, the rehabilitation facility ... Mom fell and she broke her hip, so rehab is going to be there to get her stronger. And typically, we're going to have two choices to pay for her long-term care. The choices to pay for her long-term care are going to be for whether she has Medicare, or whether she has an HMO, basically going to be a part, a C plan, which is going to be a Medicare replacement.

But the options there is Medicare is going to be help paying for this, in some respects. But Medicare does not pay for long-term care. So sometimes people say, "What's Medicare going to pay for?" Had a lady that came in yesterday and she said, "Well, I want to have a caretaker come in and clean my house, and make sure I can stay home longer, and cook me meals. Will the government pay for that?" And the basic answer was no. So sometimes people think that Medicare is going to pay for things. But Medicare is really a health insurance program. It's not a long-term care insurance program. In health insurance, the whole idea is to get you stronger. And so mom fell. She broke her hip. And she is now in the skilled nursing facility. And what this will say is mom has up to 100 days of rehab after a 3-day hospital stay. So in this typical scenario where mom did fall and she had a decline in health, everyone generally knows that, hey, mom better stay in the hospital for 3 days.

And once she stays in the hospital for 3 24-hour periods, basically it's 3 nights, then she can leave the hospital and then go to the skilled nursing facility, and Medicare will pay for up to 100 days of rehabilitation or to get stronger. And this is part of the health insurance aspect to it is to get you stronger. And so after the first 20 days of Medicare, then there's going to be a co-pay. Copays are the days 21 through 100. And the co-pay is around $167 per day. Now, if you have a Medigap plan, most of the Medigap plans will pay for that $167 per day. So Medicare pays for 100 percent days 1 through 20. After day 20, then the cost is $167 per day unless you have a Medigap plan. And the Medigap plan may pay for it. Not all of them do. But some of them pay for that $167 a day co-pay.

So will mom or dad get the 100 days? We know this, sometimes people, when mom’s or dad’s experience this downturn in health, and they went to the nursing home. And the nursing home staff said, "Okay. Well, they got 100 days." And people go, "Okay great. It's 100 days. At the end of the 100th day, we'll make plans to figure out what's going on." But the great reality is that most people do not get 100 days of long-term care. So they're expecting to get 100 days, but it's very rare. I would say less than 5 percent of my clients that come in actually get 100 days of long-term care. It's just such a rarity because what happens is Medicare and rehab is there to get you stronger. And when it's there to get you stronger, there's a point where you're not going to get any stronger, or rehab is not going to be any help, it's not going to help you get any stronger. So Medicare is generally going to end. And it generally ends well before the 100th day.

That can be very shocking. You can only give a 2 day notice in order to end. Then all of a sudden the family is really ... This is really part of really entering the legal nightmare now because we have to figure out what's going to happen next. So Medicare is very ineffective. Medicare really just doesn't pay for long-term care. So what's going to happen when Medicare ends? And also if you ... We will mention this is if you have an HMO, the HMO rules going to be fairly similar, but they're not going to be as good. We do know this is Medicare is a much better way. If you're dealing with mom who's in declining health, having Medicare is a generally much better way than having HMO, because an HMO will try to get mom out of rehab much sooner than Medicare will, is a general tip.

So what happens after Medicare or the rehabilitation ends? Then we have to figure out now we're in the long-term care world. And where in the long-term care world is this, they say mom's fallen, and she’s broken her hip. Now what's going to happen? So is mom going to be able to go home? Will mom go to assisted living facility? Will mom go to a dementia care assisted living facility? Or will mom need to stay in the long-term care facility, basically, what we'd generally refer to as the nursing home? Will mom have to stay in the nursing home? We kind of have this gambit of options [inaudible 00:35:28]. People will start freaking out at this point in time, of course. Medicare's going to end and we don't know what's going to happen with mom in this. Then it's going to get very expensive. And the family doesn't know what it's going to do. But their options are again is go home, go to an assisted living facility, go to a dementia care facility, or stay in a nursing home, or go to a different nursing home and pay for long-term care.

So generally, it's four ways that we figure out how to pay for long-term care: self-pay, veterans benefits, Medicaid, and the combination of these. And so the first thing we think about is self-pay. How do you pay for long-term care? Self-pay. Okay. There's different ways to self-pay. It helps to have a lot of money. Right? So if that's an option, [inaudible 00:36:08] Medicaid or VA benefits may or may not be helpful. It was a couple months ago I had a family member that came in, and mom was in the nursing home. And what they knew is this, is that they knew a lot of people who were in the facility getting care. And they knew that, basically, part of our long-term care system is so many of the people that are in the nursing home are on Medicaid. It's such a large percentage of our society that goes on the Medicaid when they're in the nursing home.

And this family says, "Well, I want to figure out how to get my mom on Medicaid." All right. What are your assets? And they said, "Well, mom's assets are a little over 4 million dollars." And I said, "Gosh. I'd really like to help you out." But they were the proverbial self-pay. You don't need 4 million dollars in order to self-pay. There are lots of factors they had to figure out. But I got to break it to them that they had ... If 4 million dollars earned 2 percent a year, that's $80,000 a year just to pay for long-term care, not even touching principle. So she could pay for it. Five minutes? I can stretch it out ... no, 10? 15? Bargaining. So anyway, self-pay is an option and we'll keep on moving. VA benefits. Veterans benefits itself, there's lots to be said about veterans benefits. You could go to a 2 day conference on just veterans benefits alone. But ultimately, we think about this, is that if you're looking to pay for long-term care, there are VA benefits that are available. And the VA benefits are generally only a part of the pension side of things, for the most part.

So most veterans, when they came back from the war, or if they were experienced in a war time, most of the veterans did not access any VA benefits that they could or would have, except for the ones that had a disability that came from their time in the service. Most of them just came home from the war, came home from things, and they just went on with their lives. But now, if they did fight, or if they did serve in a war time, they didn't actually have any active war time or anything like that, they didn't have to be in the location, they didn't have to be in Japan, or have to be in Korea or what have you, but if there was a served an active duty during a time of war ... And the time of war, of course, are generally going to be World War Two, Korea, and the Vietnam Conflict, the ones that we're experiencing now, then there's the possibility for VA benefits.

And these VA benefits can be very helpful in the right situation. And what it can provide is these costs to help pay for long-term care, little over $2100 a month for a married couple, $1800 a month for a single veteran, and then $1100 a month and change for the surviving spouse of a war time veteran. It could be very helpful, but ultimately based upon unreimbursed medical expenses. So it's not going to be for everyone. But it's going to be a couple situations where unreimbursed medical expenses, and that's probably going to be where mom or dad needs long-term care, so it's going to be in home care or assisted living. The VA benefits and the VA Benefits Program just generally, most people refer it to this, as aid and attendance. But it's VA Pension Benefits is the more proper term. But it can help out with your unreimbursed medical expenses. So there's a lot to be said about it. But it's basically you have to have assets in a certain level because there's asset limits as well.

So if mom has a million dollars or $500,000, maybe accessing the benefits would not be advisable or possible. But ultimately, if you have unreimbursed medical expenses, then the VA can be very helpful. We do say this, it's very helpful for in home care or assisted living care. It's not really helpful for the nursing home so much. And the big reason why is the nursing home is just so darned expensive. If the nursing home is $10,000 a month, you can get mom $1,100 a month to help pay for that through the VA. That's generally not going to be very helpful because mom’s money is going to probably disappear very quickly. Medicaid and long-term care. Medicaid is helpful to pay for long-term care if you reach certain income and asset levels. We'll say this, is that Medicaid is really...

It doesn't differentiate between who's receiving Medicaid and who's not. So if your mom's in a long-term care facility, the facility is going to provide good care for mom whether she's on private pay or whether she's on Medicaid. The caregivers do not care. And it's actually illegal for them to discriminate against someone based upon their payer source. So you're going to get good care while on Medicaid. It's great for the nursing home care as well. So what we generally say is Medicaid is really great to help pay for nursing home care because it's so darned expensive. So it's not so great for assisted living facility. You can get Medicaid and you can get VA benefits to pay for assisted living, but assisted living it only provides about $1100 a month subsidy. But there's a long wait list to get on that as well. If your mom is in assisted living facility, or if she's entering the long-term care, it's a good opportunity to look at getting Medicaid to help pay for the benefits.

But ultimately, assisted living is very difficult. So what we know is this is that experiencing dementia, and then getting government help to pay for long-term care in assisted living facility or a dementia care facility, that's the most difficult thing to get because the government's not really that helpful. It's somewhat helpful to pay for assisted living care. But again, it only provides about $1100 a month subsidy. Even getting that subsidy is not very easy. So if you're going to a five or six thousand dollar a month dementia care facility, the $1100 a month doesn't go very far in most circumstances. I'll say this. Assets and Medicaid, there's a countable asset limit, $123,000 in countable assets for a couple, only $2000 for a single person. And the countable assets include bank accounts, stocks, bonds, and mutual funds, basically anything that you own.

And sometimes people say, "Well, I'm on mom's bank accounts. And does that mean that half the money is mom's and half the money is mine?" The basic answer is no. It's all going to be considered mom's money. So countable assets basically include just about anything that you own. And the assets excluded from Medicaid are a home of up to $572,000, 1 car, and burial accounts. So this is the basic thing. In order to get Medicaid to help pay for long-term care, you need to fall within their very strict asset guidelines. We always say is this, is sometimes people say, "The nursing home is going to take mom's money." The nursing home will never take mom's money. The nursing home is just going to expect to get paid until mom is otherwise eligible for Medicaid.

Income and Medicaid, very briefly. Your income cannot exceed $2,250 per month. But that's why you have a great durable power of attorney in order for a way around that. IRAs are considered income for Medicaid purposes. They're not going to be considered assets. So that's if mom has $300,000 in IRAs that could be countable as income for Medicaid purposes. That may not be countable as an asset for Medicaid purposes, very importantly. And when you're in the nursing home, basically all of your income goes to the nursing home. And you're allowed to keep $105 per month. That's going to be changed to $130 per month. So a single person in the nursing home, again, is all their income goes to the facility. They're allowed to keep a little bit of money for themselves as part of the patient's responsibility. And the spousal rules itself is mom, at home...

If there's a spouse at home, the spouse at home may be able to divert some of the spouse's and the nursing home's income as well, in order to maintain a minimum standard of living. But the spouse at home is also allowed to have unlimited income as well. So there's a lot to be said about the spousal rules. Where am I on time? That's it, huh? Don't give your money away to get on Medicaid. Please, do not. Go see an elder law attorney.

David Klement:                  Wait for the mic.

Speaker 4:                           Could you tell me is a power of attorney from New Jersey, would that still be good here as well because my husband has dementia, and he has declined somewhat and he wasn't at that time.

Rep DeLoach:                    So the question again is, "Is the power of attorney from New Jersey good?" The basic answer is yes, with a but. When the Florida statutes were changed in 2011, the rule specifically said that out of state powers of attorney, if it was good in New Jersey, then it's going to be good in the state of Florida. So it is effective. You are the effective power of attorney. There may be some limitations that are part of it, but ultimately the power of attorney itself is good. It could be some little things in there, but we could not necessarily figure out ... we could figure out in the right fact pattern. But ultimately, you are power of attorney in Florida with an out-of-state power of attorney.

Speaker 5:                           There are some questions over here.

David Klement:                  Wait for the mic please.

Speaker 6:                           Ready? Are you ready? No. Yes. Okay, I have two questions. A durable power of attorney, as soon as it's signed, do you need to make copies for the banks, anything financial, they need to have copies of that, is that correct?

Rep DeLoach:                    Basically, the power of attorney in making the power of attorney effective, is the power of attorney, the attorney in fact has to go to the financial institutions to register the power of attorney. So if mom feels comfortable at that time, then the reality is it's best for mom and the attorney in fact to go to the bank and register the power of attorney at that point.

Speaker 6:                           So the person that's giving ... what do I want to say? The person who's being cared for, they actually need to go to the bank and register the power of attorney?

Rep DeLoach:                    The answer is-

Speaker 6:                           Not the person who is actually the durable power of attorney.

Rep DeLoach:                    Basically, it's difficult. Banks hate powers of attorney. Banks hate powers of attorney. So, just I'll give you a specific example. I became power of attorney for a lady who lived in an assisted living facility. She was not doing well physically at all. And I go down to the bank, the bank down the street, Sun Trust. I walk in the door. They say. "Rep, it's great to see you. It's been a long time." I personally know the banker who's helping me out. I personally know her. And we fill out the form card for the bank to add me as the power of attorney, as a signer on the account. And the banker says, "Now, we need to get mom's signature on the form in order for you to be the power of attorney." So what happens is this, the banks always want to get mom's signature. They're legally ... they don't need that. But it's ultimately because it's so difficult at the bank, we generally would encourage mom, if she's capable, to go down there. If not, you just have to have an argument with them.

Sometimes you do, sometimes you don't. But there is no legal reason that mom needs to sign that signature card, but sometimes to get it done with, if mom is able to do it, then it's a fine way to go. So it's not legally, but ultimately banks are just difficult to deal with. So if you can do things and bring mom down there, and it's not that much of a hassle, then it's okay to do. What we would also say is this, is when you're doing that, you're generally not adding someone as a co-owner on the account. That can mess up mom's estate plan. You talk with the estate planning attorney about it, so you're not trying to add someone as a co-owner of the account, you're trying to add someone as the power of attorney.

Speaker 6:                           So you don't have to have, the person who's in power of attorney, their name doesn't need to be on the account?

Rep DeLoach:                    That's right. They just need to register the power of attorney itself-

Speaker 6:                           Just register.

Rep DeLoach:                     ...which is a joy.

Speaker 6:                           Oh. Thank you.

Rep DeLoach:                    Good question. I've raised like 80 other questions. What? We only have time for one last question people.

Speaker 7:                           If you had a power of attorney drawn up before 2011, because of changes, do you have to have it redone or is it still...?

Rep DeLoach:                    Oh, that's a great question. So what we'd say is this, is powers of attorney generally should be updated every once in a while. And I can truly say this. If you had a pre-2011 power of attorney, the power of attorney itself is good. The law said anything before 2011 is just fine. But what we know is this, and this is from a personal experience but it's also just from there are trends in the legal world. And when I first started practicing law, and I've been part of my father's law practice for 18 years. When I first started to taking over the practice, the powers of attorney we did were very plain. And it was the power to buy, sell, trade. But it did not include the power to do Medicaid asset protection powers, for instance.

So those were not standard clauses that we put into our powers of attorney. So what we would say is this, is probably a pre-2011 power of attorney should be updated. And generally, you probably update your power of attorney every 10 years, from a ball park figure, every five to ten years. So because these documents are so very important, and so very helpful in the right situation, it's just a good idea to update them every once in a while. And thank y'all very very much. Thank you.

David Klement:                   I'm sorry we couldn't get to all your questions. Maybe Rep will stay through the first break for individual questions. And now, to Maria, for our next speaker.

Maria Winer:                       Isn't that great information from Rep? He has his table right over here on this side. She's waving her hand. If you have any questions or anything, come over and speak with him directly.

D. Rep DeLoach III
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