Elder Law

Guardianships and Conservatorships

Sometimes, a situation arises where a person can no longer handle his/her own financial and/or personal affairs. Perhaps an elderly parent has been able to function independently at home for a long time, but an unexpected injury or illness precipitates a steep decline. Or, a relative with mental illness can no longer care for him/herself due to worsening mental health or a traumatic brain injury. Parents of children with developmental disabilities who are nearing the age of eighteen also face the issue of whether their children will be able to make their own personal, medical, and financial decisions as adults.

The above circumstances illustrate common scenarios when a court is asked to appoint a family member, friend or if none are available, a professional, to act on behalf of the incapacitated individual. These protective measures are known in legal terms as guardianship and conservatorship. A conservator manages the finances of a protected person and a guardian makes personal and medical decisions. The court’s goal is to approve the least restrictive plan for each incapacitated person in order for that person to retain as much independence and decision-making ability as possible. Conservatorship and guardianship only become necessary when delegating decision-making authority through other means such as a durable power of attorney or health care proxy is not possible, such as when the person has failed to execute such documents prior to becoming incapacitated. Conservators and guardians are held to a high level of responsibility and must make decisions that are in the best interest of the protected or incapacitated person. Conservators are required to file yearly accounts with the court and guardians must file yearly reports.

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Help! The Doctor Says Mom Can’t Stay at Home Anymore. What Do We Do?

Summer is finally on the way! For many people, that means family reunions for holidays such as Mother’s Day, Father’s Day and the Fourth of July. Family gatherings can often be the time when a decline in functioning of aging parents is most noticeable to adult children who live distantly, are raising their own families, and can’t visit home as often as they’d like. Perhaps Mom and Dad’s previously pristine house is cluttered with piles of unpaid bills and unopened mail. Or, Dad’s usual immaculate grooming habits are no longer evident and he looks unkempt, wearing the same unwashed clothing day after day. Or, their pantry and refrigerator, usually well stocked, instead contains expired food and little else.

These are difficult issues to address, particularly as parents may resist efforts by their children to step in and assist. Sometimes, circumstances come to a crisis when an accident or injury happens. Mom or Dad falls at home and is admitted to the hospital. The hospital may send him or her to a rehabilitation center for therapy, where it may later be determined that living independently at home is no longer an option. What is the next step?

Choosing Care Options

When an elder begins to need assistance with daily living, there are different types of long-term care options available. These include assisted living facilities, skilled nursing homes, continuing care communities and even home care. It is important to understand the difference between the various types to be able to help make the decision that best fits the needs of your family member.

Assisted Living Facility

Assisted living facilities offer apartments for couples or individuals who are fairly independent and who do not need significant medical care. These facilities usually provide an hour or so per day of assistance with various light household tasks. Limited meals may also be included in the fees. Medical or nursing care is not provided, so residents must hire home health care providers or nurses privately at their own expense, if such care is needed. The cost of an assisted living facility is not covered by insurance such as MassHealth or Medicare and is paid for privately on a monthly basis. For people of limited means, there may be government assistance available to help with payment for an assisted living facility if income and asset requirements are met, such as the PACE program in Massachusetts.

Skilled Nursing and Rehabilitation Facility

Skilled nursing homes provide twenty-four hour care for people who are medically needy and require assistance with all aspects of daily living. They often offer both long and short-term care. Typically, a hospital patient may be discharged to a skilled nursing facility for short-term rehabilitation after surgery or an injury if he or she is no longer in need of acute hospitalization but still requires further therapy or medical care to regain prior levels of functioning. Once the patient sufficiently improves, he or she returns home, sometimes with continuing therapy in the home.

Long-term care in a skilled nursing facility becomes necessary when the elder is no longer able to adequately care for him or herself at home and needs assistance with all areas of care. The elder may be diagnosed with dementia and cannot remain safely at home due to potentially dangerous behaviors such as forgetting to turn off the stove, self-neglect, or wandering. Skilled nursing facility units may be locked to prevent residents with dementia from roaming from the facility.

Payment for care at a skilled nursing facility may be sought from several different sources. Medicare may pay for a limited, short-term stay for therapy following a hospitalization provided that the patient qualifies. Medicare will not provide any payment for a long-term stay, which is either paid for privately by the patient or by MassHealth, the Massachusetts form of Medicaid (if the patient is approved for benefits – which is another blog topic in itself!). Additionally, long-term care insurance policies are an increasingly popular method of planning for payment of care at a skilled nursing facility.

Continuing Care Retirement Communities

Continuing Care Retirement Communities are designed to provide a continuum of care as residents age, allowing them to change their residence level as their health care needs increase. These communities offer independent living apartments for those people who are fully able to care for their own needs, as well as assisted living apartments (some of which may be specifically designed for residents with memory impairments) for those who need a minimum amount of assistance in the home and a skilled nursing unit. Each community sets its own payment policy, usually requiring a significant entrance fee and then a monthly fee for rent and a base level of services. As in an assisted living facility, if in-home medical care is needed for those residents living in the apartments, it must be paid for privately. The benefit of a continuing care community is the expectation that one facility will meet the resident’s needs for the remainder of life, without the stress or worry of searching for a new facility if the resident’s medical needs increase.

Care in the Home

Sometimes, it is possible to provide nursing and home health care in the elder’s home so that there is no need to move to a facility. As our elder population increases, home health care agencies have adjusted to provide more options for care than ever before. The cost of care varies with the specific health needs of each individual and the amount of care needed. Family members can often help lower the cost of home health care by pitching in to share some of the tasks. If the elder qualifies medically and financially, the MassHealth Frail Elder Waiver program provides payment for home care for an elder who otherwise would need to move to a skilled nursing facility. This program can be a great option for medically compromised elders who would prefer to remain at home.

Making Decisions

If moving to a care facility is the solution, the next question is who will be responsible for choosing the facility, signing admission forms, and arranging for payment? If the elder is still competent, then clearly the duty remains his/hers. However, if the elder’s physician makes a determination of incompetency, the elder will no longer be able to make personal and/or financial decisions, including decisions about where to reside. What happens then?

In the best of all worlds, the elder will have previously signed a Health Care Proxy, Living Will and Durable Power of Attorney while he or she was still competent. The Health Care Proxy provides for the nomination of a trusted person as an agent to make health care decisions for the elder in the event of incompetency, which often includes admission to a care facility. The Living Will, while not a legal document, provides guidance to the Health Care Agent about the elder’s expressed preferences regarding medical treatment. The Durable Power of Attorney is the document by which the elder nominates an agent to make all financial decisions, such as payment of bills, investment of assets, application for government benefits, etc. If these documents are in place, the agent(s) will have authority to handle all matters regarding the elder’s move to a long-term care facility.

If no such documents have been previously executed, then the only option is to apply to the Probate Court to appoint a guardian and/or a conservator for the elder. The guardian will have the authority to make personal and routine medical decisions, while the conservator will manage finances. This route is time-consuming and expensive, sometimes resulting in the appointment of someone whom the elder would not have chosen as an agent had he or she executed the above documents.

Do you have legal questions about a loved one who is experiencing memory loss? If so, contact Christine Boutin, Esq. of Levine-Piro Law at (978) 637-2048. Attorney Boutin is a member of the National Association of Elder Law Attorneys.