GeriLaw | Robert Fleming, Tucson elder law attorney, and colleagues

Questions and Answers from Caregivers

Questions (and answers) we hear from family caregivers for the vulnerable and frail elderly:

What can I do if the bank will not honor the power of attorney I have for my parent?
This is a common problem with powers of attorney. Under current Arizona law, there is no way to force a bank, title company, or government official to accept the power of attorney. Remember that even though you are acting appropriately and in your parent's best interests, powers of attorney are frequently utilized by exploiters and thieves--the bank may not be sure that your motivations are proper, or may simply have decided not to spend the energy or time to figure out whether you are using the power properly. In our experience, it is often effective to work up the chain of authority--ask to speak to the branch manager, and if she is not helpful ask that she contact her legal department. If the bank has a customer relations division, you might be able to speak with them. You might even involve an attorney--especially the attorney who originally drafted the power of attorney.

If a relative, not previously involved, comes onto the scene and attempts to take over, can a revocable living trust be contested? What about a conservatorship? A power of attorney?
Yes, all of those legal relationships can be contested. A better question might be how difficult it would be to contest each, and how expensive--because if the legal authority is more expensive and difficult to contest, then as a practical matter it might be more effective. A power of attorney is not usually "challenged" in the courts--as a practical matter, if the contesting family member lets the banks and other entities know that there is an issue, they may be less likely to cooperate with the individual named by the power of attorney, and thus make the "challenge" easier to mount. If the issue is making the agent account for his or her actions using the power of attorney, the person who originally signed the power of attorney can insist on that information and anyone appointed as conservator (of the estate) can demand a similar accounting.

A conservatorship can be contested by filing something with the court involved in the proceedings. That usually means hiring a lawyer, though it is not required. The fact of the conservatorship will mean that there is already a court proceeding, and an attorney will ordinarily have been appointed to represent the subject of the conservatorship, so the framework for a challenge is already in place. It is also necessary for a conservator to account to the court at least once a year, so there will be an annual hearing date by which anyone objecting to the conservator's actions could file an objection. The court does not, however, routinely audit conservatorship accountings or the conservator's actions--if someone wishes to challenge the conservator, they will need to initiate the proceedings to do so.

A trust is not usually monitored by the courts, and so anyone challenging the trustee's actions will probably be required to file a proceeding to do so. The fact that the challenger must initiate a court review probably means that in most cases the trust is the most difficult to contest, but of course the circumstances in each case, including the meaning of the term "contest," will be different.

What is the difference between a "guardian" and a "conservator"?
Not every state makes the same distinction between the two terms, but Arizona uses "conservator" to refer to an individual who has been appointed to manage the money of a minor or an adult needing protection. A "guardian," on the other hand, is someone who has been appointed to make personal, living arrangement and health care decisions for an incapacitated adult or a minor child (assuming, in the case of a child, that the parents are not available to make those decisions). In some other states the terms are used differently, so be careful about terminology outside Arizona.

These questions and answers are from the Frequently Asked Questions section of our extensive website. For the entire list of questions submitted to Fleming & Curti partner Leigh Bernstein at last year's (Tucson) Mayor's Caregiver Education conference sponsored by the Alzheimer's Association Desert Southwest Chapter, see the Fleming & Curti website . While there, you can subscribe to our weekly e-newsletter, Elder Law Issues.

Six Things To Consider When Writing a Will

Recently we read an excellent primer on preparing for your first estate planning interview written by Marta Williger, a friend and elder law attorney from Munroe Falls, Ohio. We asked her to share her suggestions with our readers. Here is Martha's contribution (and note that they apply to your periodic estate planning update as well as to the first time you consider making a will):

The first major hurdle in writing a Will is procrastination. Just thinking about death and dying makes some of us a little anxious. Once past that obstacle, there are six things that you should consider to be sure that your Will meets your needs.

1. Nonprobate Property: Remember your Will controls only property that is subject to transfer through the Probate Court. Any property that you hold jointly with someone else may be "survivorship" property that passes automatically upon your death to the other owner or owners. You may own property that is "payable on death" to another person. Insurance proceeds, annuities and IRA's usually go directly to the named beneficiary rather than passing through probate. Now is a good time to review all your assets to be sure that however they are transferred at your death, they pass according to your plan and wishes.

2. Specific Bequests: A specific bequest is the gift of a particular thing or a particular amount of money. For example: "My wedding ring to my daughter, Katy," or "$200 to my nephew, Felix." When a specific bequest of an item is made, the law requires that item be appraised. It is then subject to inheritance tax at the appraised value. Depending on the value of the item, the appraiser's fee and tax may not be justified. Many people prefer to give gifts of sentimental value during their lifetime to share in the recipient's joy and appreciation. You might wish to make a specific bequest of cash as a token to grandchildren or a specific charity. In doing so, keep in mind that specific gifts are always paid first. Depending on how large or small your estate is at your time of death, your specific bequest may be far more or less proportionately than you intended. For example, suppose at the time you write your Will you have $500,000 in assets. You leave $10,000 to each of your ten grandchildren and the remaining $400,000 to be divided between your two children. Unfortunately, you fall ill and require nursing home care for the last years of your life. Your estate is reduced to $100,000. Your specific bequests are made first. This leaves nothing for your children whom you had intended to inherit the bulk of your estate.

3. Residual Gifts: After specific bequests are made, you need to decide who gets everything else. Generally, if more than one person is to share the residuary, each person would receive an equal share or some percentage for each person would be named. ("to my children equally, share and share alike" or "forty percent to my Uncle Joe and ten percent to each of my six nieces and nephews".) In dividing up your residuary be sure to consider what you want to happen if one of your beneficiaries dies before you. Would you want that person's share to go to her children, to the other beneficiaries, or somewhere else entirely?

4. Taxes: Estates over $338,000 are subject to Ohio Estate Tax. Those over $2,000,000 may be subject to federal estate tax as well. Consider whether you want all the tax paid out of the probate estate or whether persons receiving non-probate assets should pay a proportional part of the tax. If your tax burden appears very large, you may find a trust more suitable than a simple Will.

5. Minor Beneficiaries: If any of your beneficiaries could be under the age of 18, you may want to consider naming a trustee to hold the property until the child comes of age. The person you name may or may not be the child's parent. You may choose to be quite explicit in your instructions to the trustee or simply choose someone you find trustworthy and leave the details to his discretion. If your own children are young, you will want to name a guardian (and alternate guardian) to care for and raise your children. Your doing so can avoid much family turmoil in deciding with whom your child will live. Be sure to choose someone who's child raising ideas are similar to yours. Use care in choosing grandparents as guardians. While your 68 year old mother may seem the best choice to have your 5 year old, she may not be equipped at 78 to handle your 15 year old.

6. Fiduciaries: Your fiduciary is the person who will gather together all your assets, pay your bills, then distribute the remainder of your estate as you direct in the Will. The person you choose should be trustworthy, organized and patient. Be sure to name an alternate fiduciary in case the person you name is unwilling or unable to handle your estate. The law requires fiduciaries to post a "bond" (an insurance policy covering theft or error) unless you say in your Will that you do not require one. This is primarily protection for your other beneficiaries. The size of the bond is determined by the amount of probate assets. The cost of the bond is paid out of the estate. Your fiduciary is entitled to payment for the service he performs. The amount of compensation is determined by the Court. Fiduciaries will generally choose a lawyer to assist with the estate. As your life situation changes, your Will should be revised to suit your needs and desires. It is generally a good idea to review your Will every five years to be sure it reflects your wishes. Think about these six considerations each time you make a Will. Your individual situation may raise additional issues and considerations that your attorney can address.

Prepared by: Marta J. Williger
Williger & Peters
323 S Main St., Suite C
Munroe Falls, Ohio 44262
(330) 633-7373 Revised 2/12/07

Understanding Caregiver Stress

The National Care Planning Council recently published an article on caregiver stress.  A 2003 study of caregivers by a research team at the Ohio State University has proven that the off-repeated adage "stress can kill you" is true. The focus of the investigation was the effect that the stress of caregiving had on caregivers. The team, led by Janice Kiecolt-Glaser, Ph.D., reports on a six-year study of elderly people caring for spouses with Alzheimer's disease. The study not only found a significant deterioration in the health of caregivers when compared to a similar group of non-caregivers, but it also found that the caregivers had a 63% higher death rate than the control group.

The demands on a caregiver result in a great deal of stress. It is often observed in publications about the elderly that stress can induce illness and depression. The resulting poor health can further decrease the effectiveness of the caregiver and in some cases, as proven by the study mentioned above, even cause premature death.

Stress can be defined as a physiological reaction to a threat. The greater the threat - the greater the level of stress. A threat is a real or perceived action against our person. Threats may include the anticipated possibility of death or injury but may also include challenges to our self-esteem, social standing or relationships to others, or a threat may simply be a potential or real disruption of our established routines. What is stressful to one person may not be to another. For example, bumper-to-bumper traffic might be stressful to the executive who is late for an important meeting, but to the delivery driver who has no deadline and is being paid by the hour, it may be a welcome respite to relax and listen to the radio.

Stress produces real physical changes. In some unknown way the fears in an individual’s mind, both conscious and subconscious, cause the hypothalamus and pituitary glands, deep in the brain, to initiate a cascade of hormones and immune system proteins that temporarily alter the body. This is a normal human physiological response inherent to the human body when a threat is perceived – real or not. It is often called the "fight-or-flight response" or the "stress response". The purpose is to give us clearer thought and increased strength as well as to activate the immune system to deal with potential injury and to repair potential wounds. When the perceived threat is removed, assuming no damage is done, the body returns to normal.

A team of researchers at the Ohio State University Medical Center has found a chemical marker in the blood that shows a significant increase under chronic stress and is linked to an impaired immune system response in aging adults. The team, led by Dr. Janice Kiecolt-Glaser, reports in the June 30, 2003, issue of Proceedings of the National Academy of Sciences on a six-year study of elderly people caring for spouses with Alzheimer's Disease. With the caregivers, the team found a four-fold increase in an immune system protein – interleukin 6 (IL-6) – as compared to an identically matched control group of non-caregivers. Only the stress of caregiving correlated to the marked increase of IL-6 in the caregiver group. All other factors, including age, were not significant to the outcome. Even the younger caregivers saw an increase in IL-6.

The study also found that the caregivers had a 63% higher death rate than the control group. About 70% of the caregivers died before the end of the study and had to be replaced by new subjects. Another surprising result was that high levels of IL-6 continued even three years after the caregiving stopped. Dr. Glaser proposes the prolonged stress may have triggered a permanent abnormality of the immune system.

IL-6 is only one cytokine – an immune system mediator protein – in a cascade of endocrine hormones and cytokines that are released when the brain signals a person is threatened with harm, injury, undue mental or physical stress or death. The hormones prepare the body to react quickly by increasing heart rate, making muscles more reactive, stimulating thought, altering sugar metabolism, and producing many more changes that result in the "rush" people experience when they think they may be harmed.

The problem is if this response is initiated frequently and over a long period, then it can have a dangerous effect on the body. This constant initiation of the stress response is common among caregivers – especially those caring for loved ones with dementia. Providing supervision or physical assistance many hours a week and over a period of years turns out to be extremely stressful. This type of stress is often unrelenting, occurring day after day and week after week. And the long-term effects of this stress are more pronounced in middle-aged and older people who are precisely the group most likely offering long-term care to loved ones.

Prolonged high levels of IL-6 and the accompanying hormones and cytokines have been linked to: cardiovascular disease, type II diabetes, frequent viral infections, intestinal, stomach and colon disorders, osteoporosis, periodontal disease, various cancers and auto immune disorders such as lupus, rheumatoid arthritis and multiple sclerosis. Alzheimer's, dementia, nerve damage and mental problems are also linked to high IL-6. Wounds heal slower, vaccinations are less likely to take and recovery from infectious disease is impaired. People who have depression also have high levels of IL-6. Depression in caregivers is about eight times higher than the non-caregiving population.

Andrew H. Hook
Oast & Hook
www.oasthook.com

Children with Disabilities and Social Security

A recent Wall Street Journal article addressed the issue of Social Security benefits for children with disabilities.  These children may be eligible for Supplemental Security Income (SSI), or they may be eligible Social Security Disability Income (SSDI) based on a parent’s work record.

For SSI, a child under the age of 18 years may be eligible if the child has impairments that meet Social Security’s definition of disability for children, but the family’s income may preclude the child from receiving this benefit.  Once the child turns age 18, the family income is no longer a factor, because the benefit is based on the child’s own income and resources.  The child must meet Social Security’s adult disability definition, meaning that the child must be unable to do “substantial work,” or must be unable to earn more than $940 per month. 

A child with a disability may also be eligible for SSDI based on a parent’s work record.  The parent must be receiving retirement or disability benefits or have died in order for the child to receive this benefit.  The child has to meet the Social Security definition of disability for adults, and the disability must have begun prior to the child becoming age 22.  Generally, the child would receive one-half of the worker’s retirement or disability benefit amount.  The actual amount depends on three factors: the worker’s earnings record, the time of the worker’s retirement benefit claim, and the number of dependents.  For example, if the parent starts to collect Social Security retirement benefits prior to the parent’s full retirement age, then the monthly benefit amount is permanently reduced.

If the family includes more than one dependent (for example, spouse and two children with disabilities), then the benefits paid to all dependents would be combined into a “family benefit amount.”  The family could get as much as 180% of the worker’s benefits, but the exact amount is calculated by a complex formula.  Although the worker’s benefit would not be reduced, the dependents’ benefits could be reduced proportionately if the total family amount exceeds the limit.  The maximum benefit amount does not apply when each spouse is collecting benefits based on his or her own work record.  Families should consult with their local Social Security office for information specific to their situation.  There are also several publications on the Social Security website (www.ssa.gov) that may be helpful, including “Benefits for Children” (Publication No. 05-10085), “Benefits for Children With Disabilities” (Publication No. 05-10026), “Supplemental Security Income” (Publication No. 05-11000), and “Disability Benefits” (Publication NO. 05-10029).

Andrew Hook
Oast & Hook
www.oasthook.com

Some late-night thoughts on advance directives

Tonight a very close friend and nationally-known elder law practitioner lies in a hospital bed, unconscious for the seventh night since his cardiac arrest. He is one of the most physically-fit men I know, and I hope like hell that his lifelong attention to fitness will be the thing that pulls him through. But that's not what I wanted to write about.

This man is one of the main figures in his state advocating that everyone ought to sign appropriate advance directives, and he took his own advice. I have no doubt what his intentions were when he signed the forms, and I have no doubt that they are in excellent order (though I have not seen them, and would have no reason to have reviewed them). I'm sure they name his wife as his agent, and that would be completely appropriate. She has been married to him for over 30 years, she is the mother of their two lovely adult daughters, and she is a physician. She is obviously qualified to act for him, and there could be no better choice. In fact, we should all wish we had such a perfect candidate to act as our own health care agents.

I know him well enough, and this issue has been a topic of discussion often enough, that I am pretty sure his wishes are pretty much in line with my own -- and, indeed, with those of the majority of my clients. But I'm not sure they are the right choice.

He has had a medical tragedy. His prognosis is guarded. If he recovers, he might well be permanently injured -- and I strongly suspect he would have said he didn't want that. But he has been on a respirator for two periods during the past week, and we can reasonably assume that his treatment has been more aggressive than he thought he wanted, and more aggressive than he would have approved for himself. Still, I think that aggressive treatment has been right.

Why? Because he is not the only figure in the drama. Assuming that he would have absolutely forbidden a respirator (I don't think he would have, or did, but let's assume it for a moment), the law of advance directives is clear that his wife should be bound by that uncompromising position. But it would be wrong. He might get better, and his sudden cardiac arrest deprived all of us -- and particularly his close-knit, loving family -- of the opportunity to come to grips with his mortality. Would it have been different if he had been 87 instead of 57? Perhaps, but perhaps not -- on the strength of this one personal crisis (and one glass of wine) I am not prepared yet to generalize about the issue.

Suppose his wife said "I know he would hate this, but I have to do it." Would I argue for an absolutist approach? Would I insist that the hospital ethics committee be convened, or a court proceeding initiated? No. And that makes me wonder about my own advance directive, and yours, and my clients'.

It absolutely makes a difference to me that the wife's motives are positive, that the relationship is strong and long-term, and that her self-awareness is high. But I think maybe I should soften the stridency of my advance directives, and admit of the possibility of in-crisis adjustment for the benefit of the individual, his or her agent, their families and their communities. I'm deeply glad they're still trying, and I hope it works. She's doing the right thing, and she's doing it out of love.

Robert Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com