What Are Some Alternatives to Guardianship?

Guardianship is a court arrangement where a judge appoints someone to assist in managing an individual’s healthcare and financial affairs when the individual is no longer able to do so on their own. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care, Guardianship of the Person. The second category grants the guardian power to oversee the ward’s personal and home property, Guardianship of the Property. Usually, people who require guardians are individuals who may have neglected to engage in advance estate and care planning.

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The guardian could be a family member or the court could appoint an independent person. The court then supervises the guardian after they have been appointed. Guardianship appointments can be time-consuming and costly with prolonged legal fees. However, the good news is that guardianship is preventable. There are a few alternatives to guardianship that you can explore with early and proper planning. The following are potential alternatives to guardianship that should be widely considered. 

Obtaining a Representative Payee as Alternative to Guardianship of the Property 

If someone receives government benefits like Social Security, but they cannot manage the money on their own, the Social Security Administration can grant an individual to be appointed to receive the funds on behalf of the incapacitated individual. Social Security designates this person as a representative payee. The payee is required to use the funds to pay for the individual’s expenses and report the expenses to the agency. The payee must give an account to Social Security for how the money was spent. If you believe this is necessary for you and your family or loved one, you can do this by contacting Social Security and completing an interview. After completing the interview, you may be approved and be appointed a representative payee. Becoming a representative payee may avoid the need for a Guardian of the Property. 

Obtaining Durable Powers of Attorney as An Alternative to Guardianship of the Property

A Power of Attorney (POA) is a legal document used to plan ahead of time. A POA allows one person (called the principal) to appoint one or more other people (called agents) the right to make health and/or financial decisions for them. Elders usually appoint an adult child as their agent as their mental and/or physical health deteriorates. In order to appoint an agent, the principal must have the capacity, at the time they choose who they want to act as their agent and when they sign the document. A POA is significantly less expensive and less time-consuming than a guardianship hearing.  Having a Power of Attorney in place could prevent the need for a Guardian of the Property to be appointed. 

Acquiring a Health Care Proxy as An Alternative to Guardianship of the Person

Similar to a Power of Attorney, a Health Care Proxy (HCP) is a document used to plan early. An HCP allows for an individual, with capacity, to appoint another person that they trust to make healthcare decisions for them. The principal will choose one person who can serve as their agent. An HCP, along with any other medical directives, will allow the principal to state their health care wishes early on. Although the HCP can be signed at any time, the HCP is only effective after two doctors decide that the principal is not able to make decisions on their own. Having a health care proxy in place could obviate the need for a Guardian of the Person. 

Trusts And Estate Planning as An Alternative to Guardianship of the Property

A third alternative to guardianship is to execute a trust. A trust is a legal contract between three parties – the grantor, the trustee, and the beneficiary. A trust can serve as a means for property management. Having a trust can sometimes avoid having a Guardian of the Property because the trustee can effectively manage your property, instead of a guardian. 

For disabled individuals or individuals planning for disability, you can create a First Party Supplemental Needs Trust or a Third Party Supplemental Needs Trust. These types of Trusts allow you to protect your assets while still being eligible for certain government benefits. Certain supplemental needs trust may need the court’s approval before being established. Each of these trusts has nuances that should be discussed with an estate planning or elder law attorney. 

Joint Checking Accounts as An Alternative to Guardianship of the Property

A fourth alternative to guardianship and property management is by setting up and maintaining a joint account with another person. You can also add a person to the account for convenience sake only. By adding another person to the account, it will allow the other person to pay the bills and be an alternative to a guardian of the property. 

Assistance with Care Management As Alternatives to Guardianship

If someone requires limited assistance, they may be able to use a case management tool instead of a guardian. They would create a plan that would allow others to assist and support the individual with the specific needs they may have while also allowing the individual to function independently in the areas they are able to. For instance, Adult Protective Services (APS) can provide case management without the need for a guardian. APS would appoint a case manager who can provide assistance with different needs like obtaining and recertifying for Medicaid, assuring proper living arrangements, monitoring safety, managing financials like social security benefits, and providing heavy-duty cleaning services.

How can an elder law or guardianship attorney help?

Guardianship is an expensive and, at times, cumbersome and complicated process. It is very possible to avoid guardianship by using any of the above ideas or resources. We can help you avoid guardianship. If unavoidable, we can also help you petition for guardianship. To learn more about the legal process of seeking guardianship it’s best to consult a lawyer. 

For further elder care information, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

What Should Loved Ones be Made Aware of When Seniors are Returning to Nursing Homes After a Hospital Stay?

When your elderly loved ones are returning to a nursing home from a hospital, there are a number of things that you should be made aware of. Understanding what documents are protecting their medical records and attaining healthcare authority or access to healthcare records is essential to managing a loved one’s care. The following information will help make sure that you’re fully prepared to answer any questions regarding the care of an elderly individual in your family.

returning to senior housing after a hospital stay

HIPAA, or the Health Insurance Portability and Accountability Act, has a significant influence on providing medical care for loved ones. This federal law was passed in 1996 to preserve the privacy of medical data about persons. It mandates that healthcare providers and insurance companies maintain medical information private and safe. Unless the patient gives explicit permission, this information cannot be shared. This gives individuals more control over their health information and the ability to regulate who has access to it.

With the public's interest in COVID-19 instances heightened, many people want to know if anyone in their neighborhood has tested positive. HIPAA's right to privacy clashes with this demand for knowledge. HIPAA protects patients' medical information even in the midst of a global epidemic.

HIPAA-protected information includes: 

- any and all confidential info in a patient's medical record 

- any discussions or information collected by a doctor or medical experts, and 

- information on medical billing

A patient can allow their caregiver access to patient data regarding their care by signing a HIPAA authorization form. In many cases, having access to this information allows a caregiver to make better judgments about the patient's treatment. This also enables caregivers to interact directly with a patient's doctor in coordinating treatment and care amongst medical organizations, as well as to negotiate and pay medical expenses on behalf of the patient.

Upon Discharge, Re-evaluation of Physical and Cognitive Abilities is Suggested

Although relatives may be under a lot of stress as discharge day approaches for their loved one, it's a good idea for them to discover how changes in their loved one's condition will affect whether their requirements can still be addressed in their present community and the expense of the nursing home. Reading the community's qualifying requirements for resident admittance is an excellent place to start.

A cognitive evaluation is usually performed upon initial admission and whenever a resident's health changes in order to evaluate their physical and mental skills and identify their care needs. Workers at a loved one's senior care facility should communicate with family members and hospital personnel, such as physicians, social workers, and therapy departments, to assess the patient's changing needs and whether or not the community can satisfy them. Caregivers should be proactive in ensuring that the care team communicates well.

In light of COVID-19, How Have Nursing Home Regulations Changed?

CMS released guidelines on how nursing homes should respond to the pandemic as the number of COVID-19 cases and fatalities rose. In a February 2020 informative bulletin, the Centers for Disease Control (CDC) encouraged health care institutions to evaluate the COVID-19 guidance and recommendations, as well as their own infection control policies. 

With the primary focus on the challenges confronting nursing homes and state survey agencies as they respond to the pandemic, legislators may reconsider whether federal Medicare and Medicaid requirements should be adapted to improve oversight and whether extra capital is required to support providers and agencies in ensuring adequate resources.

How Are The Federal Requirements for Nursing Home Oversight Enforced?

States usually conduct frequent inspections known as surveys to ensure nursing facility compliance with federal Medicare and/or Medicaid standards. States get 75 percent federal matching money for Medicaid nursing facility survey and certification activities, whereas Medicare SNF survey and certification activities are financed by a discretionary appropriation.

The penalties for institutions that are found to be outside of compliance with federal regulations differ based on whether the defect is considered to directly threaten the health or safety of patients.

Civil money penalties (CMPs) can be assessed for the number of days a facility is not in significant compliance or for each occurrence of noncompliance. CMPs can vary from $6,525 to $21,393 for inadequacies that provide an immediate threat, and from $107 to $6,417 for defects that do not pose an immediate threat but either caused actual harm or have the potential to create more than minor injury.

If the individual you are caring for does not have a Healthcare Power of Attorney, it is advised that you persuade them to sign a HIPAA release and maintain copies of these documents in their file. This enables you to contact medical experts as well as any other family members to whom the patient has provided permission. 

For more information on creating a POA for your loved ones please contact The Law Office of Inna Fershteyn (718) 333-2395 for an experienced and diligent elder attorney who can guide you through this process.

Potential Challenges When Naming a POA

A Power of Attorney (POA) is the most important document needed for estate planning. A POA grants an individual, known as a principal or grantor, the right to make health and/or financial decisions for someone else. Seniors usually appoint an adult child as their grantor as their mental and/or physical health deteriorates. While the legal process of obtaining a POA may be quick, the emotional burden is a heavy one. Family members often argue over who can be trusted and will treat their duties with the utmost responsibility. In order to decide who qualifies under this position, it is important to understand what a POA is and what actions the grantor has control of. 

Family Members Feud Over POA

Common Factors in Deciding Who To Name as POA

In many cases, a senior acknowledges their eldest child or child that lives closest to serve as a POA. However, in other cases individuals choose to take other factors into consideration before making a serious decision. Seniors will make their decision on preconceived notions of their child’s history maintaining their personal finances. If the elder knows that their son/daughter is thousands of dollars in debt and spends their money carelessly, then they will be less likely to trust them as their POA. In contrast, if a child is in a related profession, then the elder will be more likely to trust them with control of financial or medical decisions. Professions such as nurses, doctors, bankers, and accountants fall under this category. 

Potential Problems Naming Joint or Co–Agents as POA

At the same time that seniors may have a difficult time determining who to acknowledge as their POA, their children may also not want to take on the role. When the senior finally chooses who to name their POA, other children may exhibit emotions of disappointment and/or anger. Picking one child over another implies that the latter is unfit to take on the responsibility. To prevent a feud from occurring, there are ways in which responsibilities can be divided between siblings. 

POA obligations are divided into two categories: medical and financial. Of course, one individual may take on both obligations, but it is also possible to split them between two people. By granting separate responsibilities to each child, they will feel that their perspectives are equally viable in determining their parent’s elder care. It also allows them to work together as a team when the two obligations cross paths. 

An alternative option is to name consecutive agents when drafting a POA. In this scenario, if a designated grantor is unable or refuses to uphold their obligations as POA, then a secondary agent will take over their position. While this may not improve present sibling tensions, it highly guarantees that a responsible individual will preside over the elder’s decisions. In this case, even if a child refuses to serve as POA, there will always be someone to take on the role in consecutive order as listed by the elder. It is always a good idea to have a backup plan to ensure the elder is taken care of at all times. 

A more likely solution to a sibling feud is to name them as co–agents in the POA document. Co–agents have an equal say on all decisions made for their parents easing tensions between the two. However, it is important to note that not all states allow for a co–agent option and also vary in the ways in which these two can act on decisions together when drafting POA. To find out whether co–agents are a feasible option in your state, it is best to consult with an experienced and knowledgeable licensed attorney. On the downside, co–agents are granted joint powers of attorney, meaning they cannot make independent decisions on any matters. Therefore, when naming co–agents, it is crucial that the two individuals have established a positive and productive relationship. Once again, this legal binding only exists in some states. To find out whether co–agents may act independently in your state, you should always consult with an attorney. 

The POA Decision and Potential Family Aftermath

Some families do not face any obstacles when appointing POA. However, the hardships commence when the agent begins to administer their duties. Oftentimes, siblings disagree over whether the agent carries out their duties in an efficient and responsible manner. 

Questioning the Validity of the POA Document and Actions of the Agent

Sibling rivalry oftens unleashes conflict over POA. Siblings who aim to sabotage the named POA will accuse them of taking advantage of their mentally disabled parents. In some cases, they may accuse them of forcing their parents to sign a POA even if it was signed under legitimate circumstances. Unfortunately, even if the agent has abided by all legalities, these accusations may lead to a long and stressful investigation. 

Unwilling to Follow the Principal’s Wishes

A designated agent must uphold a legal responsibility to ensure that all decisions are made in the best interests of the individual they represent. Even if personal opinion conflicts with best financial or medical interests, the agent must put their opinion aside. For example, a Do Not Resuscitate (DNR) order often classifies as a conflict of interest. If an agent does not follow the principal’s wishes, they can be sued at any time. 

When the POA is not the Hands-On Caregiver

Issues tend to arise when the appointed POA is not the same individual that provides full time care to the principal. This creates animosity between the caregiver and POA. For instance, it is frustrating if one sibling lives with and cares for their mother, while another sibling has full control over medical and financial decisions. This situation may cause miscommunication and/or lack of agreement on what is best for the principal. 

For all of your elder law needs, please contact the Law Office of Inna Fershteyn at (718) 333-2395.