Elder Law Assignment 2.2

Elder Law for Paralegals uuu EDITORIAL ADVISORS Deborah E. Bouchoux, Esq.

Georgetown University Therese A. Cannon Executive Associate Director Western Association of Schools and Colleges Katherine A. Currier Chair, Department of Paralegal and Legal Studies Elms College Cathy Kennedy Paralegal Program Director Legal Studies Department Globe University/Minnesota School of Business Susan M. Sullivan Director, Graduate Career Programs University of San Diego Laurel A. Vietzen Professor and Instructional Coordinator Elgin Community College William I. Weston Dean, College of Legal Studies Kaplan University Elder Law for Paralegals uuu Laurel A. Vietzen Professor Emeritus Elgin Community College AUSTIN BOSTON CHICAGO NEW YORK THE NETHERLANDS Law & Business # 2011 CCH Incorporated. All Rights Reserved. www.WoltersKluwerLB.com.

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1234567890 ISBN 978-0-7355-0867-5 Library of Congress Cataloging-in-Publication Data Vietzen, Laurel A. Elder law for paralegals / Laurel A. Vietzen. p. cm. — (Aspen college series) Includes index.

ISBN-13: 978-0-7355-0867-5 ISBN-10: 0-7355-0867-4 1. Older people — Legal status, laws, etc. — United States 2. Legal assistants — United States — Handbooks, manuals, etc. 3. Older people — Legal status, laws, etc. I. Title. KF390.A4V54 2011 346.7301 03 — dc22 2011004315 About Wolters Kluwer Law & Business Wolters Kluwer Law & Business is a leading provider of research information and workflow solutions in key specialty areas. The strengths of the individual brands of Aspen Publishers, CCH, Kluwer Law International, and Loislaw are aligned within Wolters Kluwer Law & Business to provide comprehensive, in-depth solutions, and expert-authored content for the legal, professional, and education markets.

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Wolters Kluwer Law & Business, a unit of Wolters Kluwer, is headquartered in New York and Riverwoods, Illinois. Wolters Kluwer is a leading multinational publisher and information services company. Summary of Contents Preface xix CHAPTER 1: The Practice of Elder Law 1 CHAPTER 2: Advance Directives 25 CHAPTER 3: Guardianship/Conservatorship 53 CHAPTER 4: Social Security 79 CHAPTER 5: Medical Matters 103 CHAPTER 6: Medicare 129 CHAPTER 7: Medicaid 147 CHAPTER 8: Estate Planning 167 CHAPTER 9: Housing 189 CHAPTER 10: Abuse, Neglect, and Financial Exploitation 219 CHAPTER 11: Financial Matters 245 CHAPTER 12: End-of-Life Issues 263 CHAPTER 13: Family Matters 281 CHAPTER 14: Discrimination 305 CHAPTER 15: Veterans 323 Index 343 vii Contents Preface xix 1 The Practice of Elder Law What Is Elder Law? 2 Ethical Issues 5 Who Is the Client? 6 Confidentiality and Communication 6 Is the Client Capable of Making Decisions? 7 Emotional/Cultural Issues 9 Physical Limitations 12 Cultural/Generational Issues 12 The Paralegal’s Role 13 Assignments 16 Review Questions 18 2 Advance Directives Overview: Options Available for Advance Directives 26 Surrogate Decision Making Without Advance Directives 26 uuu uuu ix Advance Directives 28 Living Wills 29 What You Need to Know 34 Powers of Attorney 37 Effective Dates 42 Choosing an Agent 43 Powers Given the Agent 44 Drafting 45 Agent Obligations 46 Step-by-Step Guidelines 47 Assignments 47 Review Questions 49 3 Guardianship/Conservatorship Guardianship Defined 54 Law Governing Appointment 54 Types of Guardianship 55 Preliminary Concerns 55 Jurisdiction and Venue 55 Priorities for Appointment 56 Petition 58 Due Process Protections 62 Determination of Competency 66 Obligations of Guardian 67 Accounting 67 Exercise of Substituted Judgment 69 Assignments 71 Review Questions 72 uuu x u Contents 4 Social Security Overview of OASDI 80 Participation 81 Funding 83 Entitlement to and Calculation of Retirement Benefits 85 Same-Sex Couples 87 Common-Law Marriage 87 Applying for and Receiving Retirement Benefits 87 Entitlement to and Calculation of Disability Benefits 88 Working with SSA 89 Common Problems 89 Appeals Process 90 Assignments 94 Review Questions 95 5 Medical Matters What Is Geriatric Medicine? 104 HIPAA 105 Medical Team 105 Effects of Recent Changes in Health Law on Senior Clients 109 Senior Citizen Medical Issues 110 Conditions of the Mind 111 Medical Treatment Issues 111 Care Issues 112 Dehydration and Malnutrition 112 uuu uuu Contents u xi Falls 114 Glossary of Medical Terminology 118 Assignments 124 Review Questions 125 6 Medicare Overview 129 Part A: Hospital Insurance 130 Coverage for Hospital Care 131 Coverage for Nursing Home Care 133 Part B: Medical Insurance 134 Prescription Drug Coverage 135 Supplemental Insurance 136 Assignments 138 Review Questions 139 7 Medicaid Overview 148 Long-Term Care 149 Protecting the Community Spouse 151 Transfers, Trusts, ‘‘Look Backs,’’ and Estate Recovery 153 Treatment of Income 158 Step-by-Step Medicaid Preparation 159 Assignments 160 Review Questions 161 uuu uuu xii u Contents 8 Estate Planning Overview 168 Intestacy 168 Documenting the Plan 170 Wills and Codicils 170 Formalities 171 Probate 172 Challenges 175 Trusts 177 Assignments 183 Review Questions 184 9 Housing Aging in Place 190 Resources for Staying in the Home 190 Medicare Coverage of Home Services 191 Reverse Mortgages 192 Cohabitation 195 Leaving the Traditional Home 196 Age-Restricted Housing 196 Rentals and Disability 197 Assisted Living and Care Facilities 197 Regulation of Nursing Facilities 198 Assessing Quality 199 Cost and Contracts 202 Contract Questions 203 uuu uuu Contents u xiii Assignments 205 Review Questions 206 10 Abuse, Neglect, and Financial Exploitation Abuse and Neglect 220 Definitions 220 Causes 221 Perpetrators 221 Caretakers 222 Self-Neglect 222 Signs of Abuse and Reporting 223 Financial Exploitation 225 Common Schemes 229 Health Insurance Frauds 229 Telemarketing Fraud 231 Identity Theft 232 Advance Fee, Pyramid, and Ponzi Schemes 233 Home Repair Fraud 234 The Role of Government: Federal 234 The Role of Government: State 235 Civil Actions 236 Helping Older Victims 236 Assignments 237 Review Questions 238 uuu xiv u Contents 11 Financial Matters Retirement Plans 246 Annuities 250 Insurance 250 Bank Accounts 252 Tax Concerns of Elder Clients 253 Income 253 Family and Caretaker Issues 255 Assignments 255 Review Questions 257 12 End-of-Life Issues Right to Die 263 Surrogate Decisions Versus Patient’s Expressed Wishes 264 Hastening Death 266 Funerals 267 Dealing with Grief 272 Assignments 274 Review Questions 276 uuu uuu Contents u xv 13 Family Matters Overview of Marriage and Divorce 282 Property and Children in Divorce 283 Property Division and Support of Spouse 283 Custody and Support of Children 286 Unmarried Couples 286 Prenuptial Agreements 289 Grandparents 292 Visitation 292 Grandparents Raising Grandchildren 293 Financing Care of Grandchildren 297 Assignments 297 Review Questions 298 14 Discrimination ADEA 306 ADEA Waivers 307 Proving Discrimination 307 Enforcement 310 ADA 311 Employment 312 Governmental Services and Transportation 312 Public Accommodations 313 Telecommunications Relay Services 313 Other Laws 313 uuu uuu xvi u Contents Assignments 315 Review Questions 315 15 Veterans Overview 324 Process 325 Representation 326 General Eligibility for VA Benefits 327 Benefit Categories 330 Health Care 330 Disability Compensation 330 Pension 331 Death and Burial Benefits 334 Other Benefits 334 Assignments 335 Review Questions 336 Index 343 uuu Contents u xvii Preface My experience with elder law began about 30 years ago, when my in-laws (who lived several states away) visited a law firm for the first time in their lives and were persuaded to sign estate planning documents that they did not understand and that were not appropriate to their situation. The attorney, who did not have a paralegal and charged an outrageous fee, did not listen to their concerns and showed them no respect. When I graduated from law school the following year and began practicing estate planning and probate, I promised myself I would do a better job. A big part of doing a better job involves use of paralegals to keep costs down and communication up. I was fortunate that my paralegals had excellent communication skills as well as substantive knowledge. Later, as the coordinator of a paralegal program, I had a request for a course in Elder Law. I knew it was more than estate planning and I began exploring the topic. I was again fortunate: There were program graduates working in the field even though we had not offered the class. My preparation to teach the class involved learning a lot of substantive law and spending time in law firms to pick up the ‘‘culture’’ of dealing with these clients. A book on this subject could be huge, if it covered that substantive law in detail as well as the ‘‘soft skills’’ required for ethical practice and good client communication. I think I’ve found the right balance: giving students the terminology and legal framework they need to be effective without overwhelming them with detail and, at the same time, keeping the content client-focused, as this area of practice must be. I would like to thank the busy professionals who were so generous in providing information for the profiles: Noel Anschutz, Rev. Amity Carrubba, LaShonda Dillard, Greg Duncan, Heather Finn, Pete Flowers, Dr. Ron Hirsch, Eric Matusewich, Tina McHorney, Kathy Motley, Kimberly Murphy, Jennifer Poulin, Lisa Wagman, and, particularly, the people at Law ElderLaw, LLP, Aurora, IL. Laurel A. Vietzen February 2011 xix Elder Law for Paralegals uuu 1 uuu The Practice of Elder Law uuu What Is Elder Law?

Ethical Issues Who Is the Client?

Confidentiality and Communication Is the Client Capable of Making Decisions? Emotional/Cultural Issues Physical Limitations Cultural/Generational Issues The Paralegal’s Role Objectives When you complete this chapter, you will: . Understand the ethical issues and rules particularly important when representing older clients. . Recognize the factors relevant to assessing a client’s decision-making capacity. . Be aware of the emotional, physical, and cultural barriers to communi- cation between an older client and a legal professional. . Know how to search for family and financial information for a client. 1 What Is Elder Law?

According to the U.S. Department of Health and Human Services Administra- tion on Aging, 1the older population — persons 65 years or older — numbered 38.9 million in 2008 (the latest year for which data is available). They represented 12.8 percent of the U.S. population, about one in every eight Americans. By 2030, there will be about 72.1 million older persons, representing about 19 percent of the population. The people in the ‘‘older’’ category are living longer, expecting more independence, and engaging in more active lives than their predecessors, thereby creating more potential for legal issues. This demographic change presents challenges at all levels from the inter- national, as shown in Exhibit 1.1, to the local. In testimony before the Senate Finance Committee on February 10, 2010, Michael J. Burgess, director of the New York State Office for the Aging, said: These are difficult economic times across the country and here in New York State.

Older New Yorkers, their families and their caregivers are feeling the impact of the economic downturn, as it affects their income (since this year there is no federal cost-of- living adjustment for Social Security recipients), their investments, and their standard of living. The impact on standard of living is particularly problematic for those who are already living close to poverty levels; many older New Yorkers rely on the services funded through the state, federal and local budgets for assistance with food, shelter, and tasks of daily living. Counties continue to report escalating costs and diminishing revenue while needs are growing, in part due to the State’s changing demographics.

From 2000 to 2015, all but four counties in New York will experience increases in the proportion of their residents who are over age sixty-five. Governor Paterson’s budget ensures that the New York State Office for the Aging (NYSOFA) will be able to preserve the local infrastructure of the service network for older adults and the home and community-based services they and their families need to support independent living.

This is a network that has been very successful in leveraging local dollars, including significant contributions from the program participants themselves. The network of Area Agencies on Aging (AAAs) and community-based service providers is the first line of support when an older adult needs assistance following an illness or hospitalization.

Excerpted from http://www.aging.ny.gov/News/2010/NYSOFADirectors2010 Budget Testimony.pdf EXHIBIT 1.1 International Perspective on the Aging Population In almost every country, the proportion of people age 60 years and older is growing faster than any other age group, as a result of both longer life expectancy and declining fertility rates, according to the World Health Organization (WHO), which regards the aging population as a success story for health policies and socioeconomic development. While this trend presents challenges for the developed world, 70 1http://www.aoa.gov/aoaroot/aging_statistics 2 u Chapter 1. The Practice of Elder Law percent of all older people now live in low- or middle-income countries. In devel- oping countries, this demographic change, coupled with traditions based on people living shorter lives and having several children, can be devastating. For example, as the first generation of people born under China’s 1979 One-Child policy reaches adulthood, people without siblings are finding the burden of caring for aging parents overwhelming. Institutional care is not readily available and, because of cultural traditions, most people do not trust nursing homes and hired caregivers. The United Nations Population Division, Department of Economic and Social Affairs, indicates that: . One out of every ten persons is now 60 years or older; by 2050, one out of five will be 60 years or older; and by 2150, one out of three persons will be 60 years or older. . The oldest members of this group (those 80 years or older) is the fastest growing segment of the older population. They currently make up 13 percent of the over-60 age group and will grow to 20 percent by 2050. The number of centenarians is projected to increase fourteen-fold by 2050. . The majority of older persons (55 percent) are women. Among the oldest, 64 percent are women. . Striking differences exist between regions. One out of five Europeans is 60 years or older, compared with one out of twenty Africans. . As the tempo of aging in developing countries is more rapid, developing countries will have less time than developed countries to adapt to the consequences of population aging. . On average, about 70 percent of older persons in more developed countries, and only 38 percent in the least developed countries, are urban dwellers. . The impact of population aging is increasingly evident in the old-age dependency ratio — the number of working-age persons (15 to 64 years) per older person (65 years or older) — that is used as an indicator of the ‘‘dependency burden’’ on potential workers. Between 2005 and 2050, the old-age dependency ratio will almost double in more developed regions and almost triple in less developed regions. The term ‘‘dependency burden’’ provides some insight into the need for the specialty area of ‘‘elder law.’’ While elders were traditionally seen as possessing essential knowledge and experience, many segments of society now view them as an economic and physical burden. Economic downturns often aggravate this perception and make the reality more difficult. Older people may be at greater risk of losing their jobs and less likely to be retrained and reemployed, increasing their economic and physical vulnerability. Where public health care is lacking, families may forgo health care for older adults to allocate their scarce resources toward food or education for younger family members.

What Is Elder Law? u 3 EXHIBIT 1.1 (continued) Of course, the change is also felt in private lives. Any legal issue faced by one of these people is likely to have repercussions for family members, often working from a distance, so elder law issues affect a very large segment of the population.

In addition, a young person can face ‘‘elder issues,’’ such as diagnosis (personally, or of a spouse or child) with a chronic, life-changing medical condition. That does not mean that elder law is simply general practice marketed to a specific segment of the population. Most general-practice lawyers know little about navigating Social Security benefits or preserving assets while applying for Med- icaid. A truly ethical lawyer knows when she is not competent to handle a par- ticular problem and finds someone who can handle it. In identifying the topics for this book, I had to do the very thing I repeatedly ask students not to do: Make assumptions. While older clients may have any type of legal problem, including arrest for criminal behavior, I had to assume that certain problems are less likely to be of concern to the young and more likely to be of concern to older people in order to keep this book at a reasonable length. In order to identify those topics, I consulted the Web site of the American Asso- ciation of Retired Persons AARP , which conducts surveys to assess the concerns and views of its members with respect to legal (and other) issues. 2 Regardless of the area of law, dealing with older clients and others facing elder issues does implicate certain ethical and practical concerns. This chapter provides an overview of those concerns, many of which are discussed in detail in later chapters. Of course, it’s not only the legal professions that face ethical challenges as a result of the demographic trend. In October 2009, the television news show 60 Minutes reported that Medicare fraud had pushed aside cocaine as the number one criminal enterprise in South Florida. Improper Med icare payments may involve a mistake or intentional fraud by medical professionals. Because the cost is so great, Congress has enacted laws, such as the Improper Payments Information Act of 2002 3(IPIA) and the Physician Self-Referral (Stark) Act 4to monitor and reduce losses. Exhibit 1.2 is a chart from the 2009 report by the Centers for Medicare and Medicaid Services. According to the Kaiser Family Foundation, 5Medicare Spending was expected to account for 12 percent of all federal spend ing in 2010, a total of $504 billion, making the 7.8 percent improper payment rate extremely significant to the economy.

Examples Examining a client’s explanation of Medicare benefits, you see that a payment was made for surgery and say, ‘‘Mrs. Lopez, I didn’t know you had surgery,’’ to which she replies, ‘‘I didn’t, that is just the goofy way those doctors talk — they just cleaned the cut on my hand and bandaged it.’’ Or maybe she responds, ‘‘I got a free toaster oven just for going into that clinic and filling out some forms in case I ever decide to use them.’’ What may be going on in these situations?

For more information, see http://www.medicare.gov/fraudabuse/overview.asp. 2http://www.aarp.org/research/331 USC 3321442 USC 1395nn5http://www.kff.org/medicare/upload/7615-03.pdf AARP Nonprofit organizationwith a mission of improving the lives of people age 50 and older 4 u Chapter 1. The Practice of Elder Law Ethical Issues Many of the ethical issues that arise in dealing with older clients arise from a good thing: family involvement. The client may visit the law office accompanied by a relative or a close friend; the relative or friend may feel ‘‘entitled’’ to information about the client’s legal matters and even entitled to control the process. The legal professional must assess the situation using the ethical rules for the relevant jurisdiction. Familiarize yourself with those rules. The American Bar Association pub- lishes Model Rules ( http://www.abanet.org/cpr/mrpc/mrpc_toc.html ), but each state enacts its own rules, which may not be the same as the Model Rules.

Starting at http://www.abanet.org/cpr/links.html#States , find the Web sites that contain the rules of professional conduct and ethics opinions for your state. Visit the Web site and examine the rules, paying particular attention to sections dealing with conflicts of interests, confidentiality, loyalty, and professional independence.

Refer to those sections to analyze the following. EXHIBIT 1.2 National Error Rates by Year (dollars in billions) 6 Year Total paid Over- payments Over payment rate Under- payments Under payment Rate Total Improper Payments Total Improper Payment Rate 1996 $168.1 $23.5 14.0% $0.3 0.2% $23.8 14.2% 1997 $177.9 $20.6 11.6% $0.3 0.2% $20.9 11.8% 1998 $177.0 $13.8 7.8% $1.2 0.6% $14.9 8.4% 1999 $168.9 $14.0 8.3% $0.5 0.3% $14.5 8.6% 2000 $174.6 $14.1 8.1% $2.3 1.3% $16.4 9.4% 2001 $191.3 $14.4 7.5% $2.4 1.3% $16.8 8.8% 2002 $212.8 $15.2 7.1% $1.9 0.9% $17.1 8.0% 2003 $199.1 $20.5 10.3% $0.9 0.5% $12.7 6.4% 2004 $213.5 $20.8 9.7% $0.9 0.4% $21.7 10.1% 2005 $234.1 $11.2 4.8% $0.9 0.4% $12.1 5.2% 2006 $246.8 $9.8 4.0% $1.0 0.4% $10.8 4.4% 2007 $276.2 $9.8 3.6% $1.0 0.4% $10.8 3.9% 2008 $288.2 $9.5 3.3% $0.9 0.3% $10.4 3.6% 2009 $308.4 $23.0 7.5% $1.1 0.4% $24.1 7.8% 6http://www3.cms.gov/CERT/Downloads/CERT_Report.pdf Ethical Issues u 5 Who Is the Client? Scenario 1. Chris, the owner of Chris Construction, has been a client of the firm for many years, for both personal and business matters. Chris’s mother, Pat, is a widow, 70 years old, with no business experience. Pat has never used a lawyer.

Chris makes an appointment for Pat to visit the firm. Does it make a difference whether Pat is writing a will, asking advice about a contract she entered into, or asking about obtaining visitation rights with respect to the children of her de- ceased son, Mike? Mike’s widow resists involvement with her late husband’s family. Let’s take it a step further. Pat is seeking visitation with Mike’s children and Chris is whole-heartedly behind the effort. Pat is on a fixed income, so Chris paid the retainer and has been paying the bills for the firm’s representation of Pat. Last weekend, however, Chris got some disturbing news about Mike’s oldest son, Sam, age 16. Sam was arrested for beating his mother. Chris found out that Sam also has a history of shoplifting and petty theft. Chris is afraid that Sam will victimize Pat if there is contact between the two. Chris comes in to tell the firm to quietly ‘‘let the matter die.’’ Scenario 2. Jack and Jill, married for 42 years, come to the firm for wills. During the interview, Jill does most of the talking. She says that they each want a will that leaves everything to the other and that after the second of the two dies, the estate should be split equally between their two children. Jack nods and seems generally agreeable. The next day, Jack calls and asks to speak in confidence. He admits that he has an out-of-wedlock child (Jordan) from an affair he had with his secretary 15 years ago. Jill does not know, and he is adamant that she must not find out. Jack wants his will to include a substantial gift for Jordan. Is there a problem? Each of these situations involves a possible conflict of interests that the lawyer should have recognized and addressed in advance. The ethical rules of many states allow a lawyer to handle a case, despite a possible conflict, if the lawyer believes he will be able to provide competent representation to each party and that each party gives informed consent, which may have to be in writing. Confidentiality and Communication The situations described above also implicate confidentiality . Speaking to the client in the presence of another person may not only destroy privilege , it may mean that the client is not speaking freely. With limited exceptions, ‘‘attorney-client communications in the presence of a third party who is not the agent of either are generally not protected by the privilege.’’ Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977). Examine Exhibit 1.3, Rule 1.6 from the ABA Model Rules, and consider what you would do in these circumstances: 1. In helping an older client straighten out his financial affairs, you be- come aware that Medicare has paid for expensive medical equipment Conflict of Interests Ethical problem in which loyalty is divided between competing interests Confidentiality Ethical obligation of legal professionals to protect client information Privilege Legal protection againstforced disclosure of communications between client and certainprofessionals, such aslawyers 6 u Chapter 1. The Practice of Elder Law the client did not receive. The client tells you that he does not care because the doctor is his cousin’s son and, after all, this is ‘‘free.’’ 2. A client visits the office to sign her will and seems light-headed. You ask her whether she feels well enough to go through with the signing. The client admits that she has not been taking her medications because she does not like the side effects and tells you that she does not care if it shortens her life. 3. A client visits the office to sign her will and seems light-headed. You ask her whether she feels well enough to go through with the signing. The client admits that she did not sleep last night because her son, Jack, slapped her. He has done it before, sometimes knocking her to the floor. She says that because of this, she intends to leave him no in- heritance. She begs you not to tell anyone because she cannot live alone and would rather die than go to an institution. Jack has also been a client of the firm, in connection with writing his own will. 4. Client Bill comes in to discuss writing a new will. He is accompanied by his new girlfriend, Angie, who is at least 40 years younger than him.

Bill wants Angie to sit in on the meeting. Bill casually mentions that Angie is attending a local college and that he is helping her by paying her rent, tuition, car payment, and charge account bills. You are uneasy because you know that Bill has limited funds and will likely require nursing home care soon. You also know that Bill’s children are not aware of the situation. Also consider whether the lawyer is able to meet communications obliga- tions with respect to these clients. Model Rule 1.4 (and equivalent state rules) requires that a lawyer promptly inform the client of any decision or circumstance that will require the client’s informed consent and reasonably consult with the client about how the client’s objectives will be accomplished. Is the Client Capable of Making Decisions? The situations described above involve the possibility that the client is being controlled by another person. A lawyer or paralegal can often make that deter- mination by simply talking to the client outside the presence of that other person.

What if the client appears confused or determined to make decisions not in her own best interest? Model Rule 1.14 addresses clients with diminished capacity ; find the equivalent rule for your state. In general, the lawyer should, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

If the lawyer believes that the client is at risk of substantial harm (physical, financial, or emotional) and cannot adequately protect her own interests, the lawyer may take protective action, including seeking appointment of a Guardian or conservator (these procedures are discussed in depth in Chapter 3) to manage the affairs of the ward . In taking such action, the lawyer has a limited exemption from confidentiality requirements. Capacity Competency, ability to make reasonable decisions Guardian Person responsible for thecare or management ofanother person or property Conservator Person appointed to protect and manage assets Ward Person under the protectionof another Ethical Issues u 7 The comments to the Model Rules mention consultation with family members or health care providers among the actions the lawyer might take. The possibility that such a consultation might be necessary makes avoidance of con- flicts of interest especially important! Unfortunately, the Rules do not include objective guidelines for determin- ing whether a client is competent. A person may have a good grasp of reality but be intent on making a decision that others would label as ‘‘wrong.’’ For example, a client with a solid understanding of his financial situation and of his family situation may be determined to give his money to a ‘‘girlfriend’’ he has known for only a few days. A client who understands that her health is failing and that she cannot take care of herself may be determined to stay in her own home. Be careful not to confuse the physical signs of aging with indicators of competence. Many older people suffer tremors, hearing and vision loss, and even difficulty speaking; do not confuse those symptoms with psychosis or dementia . They may be on medication or have emotional issues stemming from grief or anxiety that make them appear confused, disengaged, or inattentive. Consider emotional and cultural issues, described in the next section. EXHIBIT 1.3 Rule 1.6: Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (6) to comply with other law or a court order. Psychosis Mental disorder in which,reality is highly distorted Dementia Mental deterioration 8 u Chapter 1. The Practice of Elder Law The Comments to the Model Rules suggest consideration of:

. The client’s ability to explain her reasoning in making a decision, . Consistency of state of mind, . Ability to appreciate the consequences of a decision, . Substantive fairness of a decision, and . Consistency of a decision with known long-term commitments and values of the client. According to the Mayo Clinic ( http://www.mayoclinic.com/health/dementia/ DS01131 ): Dementia isn’t a specific disease. Instead, it describes a group of symptoms affecting intellectual and social abilities severely enough to interfere with daily functioning. It’s caused by conditions or changes in the brain. Different types of dementia exist, depending on the cause. Alzheimer’s disease is the most common type.

Memory loss generally occurs in dementia, but memory loss alone doesn’t mean you have dementia. Dementia indicates problems with at least two brain functions, such as memory loss along with impaired judgment or language. Dementia can make you confused and unable to remember people and names. You may also experience changes in personality and social behavior. However, some causes of dementia are treatable and even reversible.

Emotional/Cultural Issues Even in the best of circumstances, communication with an older client can present a challenge to a much younger legal professional. The client may appear to be unwilling or unable to focus on the relevant issue, unable to see the need for prompt action, or even hostile to those trying to help. In his book, How to Say It to Seniors, David Solis suggests that communication can improve when the younger person understands the needs of the older person to maintain control and to establish his legacy. Taking a moment to consider the wording of a request can often make a difference. Consider the control implications of ‘‘Mr. Mao, these are the docu- ments you need to sign today,’’ versus ‘‘Mr. Mao, do you have any questions about these documents before you sign?’’ Adapt your own pace to the pace of the client.

That pace may be slower than you prefer because of the client’s need to explain herself, her history, and her legacy. Patient communication between a client and a legal professional can be a two-way street, as demonstrated in Exhibit 1.4. To build a connection with the client, start with open-ended questions and statements, such as ‘‘How can we help you today?’’ or ‘‘Tell me about your family.’’ Starting with specific questions, aimed at getting information relevant to your assumptions about the client’s goals, such as ‘‘Who do you want to name on your power of attorney?’’ make the client feel rushed and controlled. Take the time to explore the client’s needs and goals rather than relying on the client’s conclusions about the best way to achieve his goals. A client may come in and say, ‘‘I need to transfer my house to my son,’’ thinking that that is a way to become eligible for Medicaid, when, in fact, such a transfer could have disastrous con- sequences. Force yourself to really listen to what is being said, instead of thinking Ethical Issues u 9 about what you will say next. Having a standard intake form that flows logically from topic to topic will make it easier for you to stay focused on the client. To make communication even more challenging, an older client may be seen for the first time in an emergency situation. He may be facing life-threatening surgery; she may have lost her husband suddenly and not know what to do. In these situations a client will often focus on matters that may seem secondary to the legal professional: Who will take care of the dog? I don’t know how the title to the house is held. Where did he put his will? These are natural reactions and should not, alone, be interpreted as signs of incompetence. The important thing is to reassure the client that you can and will help, despite missing documents or other issues. EXHIBIT 1.4 Using Technology to Improve Communication Cary Client calls with a simple question about whether certain documents have arrived. The file has been handled by Lawyer Lynn and Paralegal Paul, but both are out of the office today. Do you: . Take the time to go to the file room, dig through the file, and call Cary back; . Leave a message for Paul and hope he is back in the office tomorrow and has time to take care of this; or . In under 60 seconds, pull up the following spreadsheet on your computer and find that the documents have been scanned and linked to the spreadsheet so that you can look at them by simply clicking the link? Attorney- client Correspondence Work Product Docs from Client Court Intake 6/7 Letter to Manor Care 6/14 Outline of plan for Medicaid eligibility, 6/28 Spouse death certificate 8/2/95 Petition for guardianship 11fd2130 Fee agreement signed 6/14 E-mail from Manor Care, 6/22 Notes from Lynn Lawyer’s call to Soc.

Sec. 6/16 Will, 1990, prepared by Fletcher firm Notes from client meeting 6/30 Research memo:

status of disabled child, Paralegal Paul, 8/10 Client birth certificate rcvd 6/30 10 u Chapter 1. The Practice of Elder Law Working with older clients often involves contact with intense personal grief and loss. Clients may exhibit anger, depression, denial, and refusal to cooperate.

It can be painful to witness clients in distress, but a legal professional must put the client’s needs first and concentrate on listening and understanding. Determining the client’s needs may require patience while listening to lengthy stories that appear to have nothing to do with the law. Even if the client’s needs are not revealed in those stories, listening builds trust. In addition to focused listening, the legal professional can: . Ascertain whether the anxiety has a basis in fact (recent death, medical diagnosis); chronic anxiety or grief that is not tied to an event may mean the client needs medical help; . Discourage clients from making irrevocable decisions during times of intense grief; . Protect the client from outsiders who would take advantage of intense grief; and . Assist the client in obtaining non-legal help. Assessing competency and determining whether there is a conflict of interests may require assessment of family dynamics. If the firm has previously represented members of the family, it may be possible to identify changes in relationships.

Education levels, social class, race, religion, and culture may also be important factors in how the client and family communicate and make decisions. For ex- ample, various studies 7indicate different attitudes among ethnic groups about whether patients should be informed of a diagnosis of an incurable disease.

Similar studies have found differences in how families make purchasing decisions 8 and decisions about medical care. 9Some cultures consider the topic of mental illness as ‘‘off limits’’; some regard direct eye contact as rude. Don’t forget that your own cultural characteristics may influence how you perceive the client and the family! How would you react to a client with a thick accent, a client who uses poor grammar, a client who has had a stroke and is partially paralyzed, or a client who will not shake hands? The Geriatric Mental Health Foundation, http://www.gmhfonline.org , has resources for those dealing with mental health issues in the elderly. How can you assist the client with non-legal issues? Be aware of all the resources available online and in your community. Later chapters will direct you to some of those resources and, as a paralegal, you should maintain a file or database of resources for transportation, independent living and home care, and similar issues as you find them. A good starting point is http://www.aarp.org/ internetresources/ . 7See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/11035693 and http://www.libraryindex.com/pages/ 3104/End-Life-Ethical-Considerations-PATIENT-AUTONOMY.html . 8http://www.acrwebsite.org/volumes/display.asp?id=63609http://www.jstor.org/pss/585399 Ethical Issues u 11 Physical Limitations The physical environment in which a client is interviewed is always important for preserving confidentiality and creating a comfortable atmosphere, but it is especially important in serving older clients, who may have physical limitations. Consider: . Is the office ADA compliant? 10 Will the client be able to get to the exterior door, from that door to the interview room, and from the in- terview room to a restroom without encountering obstacles such as stairs, long walks, or poor lighting? . Is the temperature comfortable? Older people are often uncomfortable in offices kept very cool in the warmer months. . Is your office or conference room equipped with sturdy chairs so that the client can get up without help and free of tripping hazards? . Can you minimize background noise, sit closer, or use amplifiers to ac- commodate hearing loss? . Can you reduce glare and adjust lighting to accommodate vision pro- blems? . Can you visit the client at home if necessary? To learn more about guidelines for accommodation of disabilities in various situations, visit http://www.ada.gov. You can also adapt your own behavior to accommodate the physical lim- itations of age: . Look at the client while speaking; speak in a low tone and do not shout. . Shake hands gently, and walk slowly when leading the way to the office or conference room. . Slow down, repeat or summarize as necessary, and take breaks as needed. . Use larger fonts for print material. . Convey information and ask questions in smaller bits; do not change topics without transition. Cultural/Generational Issues In your personal life you may be an interesting, unique individual and you may express that in your style of dress and grooming. You may take pride in your casual, easygoing attitude. You may even feel as though you can help people overcome stereotypes and become more open-minded. On the job, however, it’s all about the client. Your role is to make the client comfortable, not to change or challenge the client. Many older people are uncomfortable with the social climate that prevails among younger people, so it is important that you know which specific actions may be a distraction from a comfortable professional relationship. See Exhibit 1.5.

10The Americans With Disabilities Act, ‘‘ADA,’’ 42 U.S.C. §12101, requires that places of ‘‘public accommodation,’’ such as law firms, provide reasonable accommodations to make their premisesaccessible. For more information, visit http://www.ada.gov . ADA Americans with Disabilities Act, requires reasonableaccommodation ofdisabilities 12 u Chapter 1. The Practice of Elder Law The Paralegal’s Role An older client might be involved in any kind of litigation, transactional, or administrative matter, so a paralegal’s role might encompass any of the duties common to the particular area of law involved. There is, however, one common responsibility beyond the unique communications and ethical concerns: infor- mation gathering. An older client may have physical or mental limitations that prevent her from providing the law office with needed information and documents. A recently deceased spouse may have taken total responsibility for finances or record keeping. The first step, of course, is to determine what is needed and to ask the client or the client’s family for the necessary information. Firm patience is key, as noted by paralegal Jennifer Poulin in Exhibit 1.6. A thorough client intake sheet, readily accessible to everyone who will work on the file, is essential. Have you ever had to answer the same question for several different people during an appointment with a professional? Imagine having answered that question four times, watching people take notes, then being asked for the same information when you call with a follow- up question a few days later. Clients do not like to think that their information is being misplaced or that their stories are not important enough to remember. EXHIBIT 1.5 Lorraine Says . Do not call me by my first name until I ask you to do so. . If there is someone else in the room, do not talk around or over me. . Do not use demeaning terms, such as ‘‘sweetie,’’ ‘‘young lady,’’ or ‘‘dear.’’ . Be aware that I may be offended by ‘‘you guys,’’ slang, and even mild cursing. . I may find it very difficult to discuss family matters — divorce, adoption, mental health issues. Approach these issues with a businesslike tone and be patient about my response. . I consider financial information personal and do not like revealing details to a younger person. . My perception of you, as a professional, may be lowered by the sight of piercings, tattoos, bare torso flesh, cleavage, a short skirt, too much makeup, or any extreme fashion statement. . I especially dislike seeing a man wearing a hat indoors. Lorraine is 84 years old and, as a result of recent health problems, has had to use the services of a law office on several occasions. Her issues were serious: management of a trust, sale of a home, and a power of attorney. Because some of the individuals with whom she dealt did not understand her perceptions, Lorraine felt like her concerns were not taken seriously.

The Paralegal’s Role u 13 Ti p Rather than giving a client a list of needed documents (which creates a risk that the client will return with a big cardboard box full of 20 years’ worth of documents), create a list of the documents needed for every type of matter your firm handles (e.g., birth certificate, existing will, army discharge papers) and print labels. Affix each of the labels to a clasp-type envelope and put the envelopes into a file folder or bag with your firm’s contact infor- mation. The client can put a document in each envelope, know when she has everything, and bring it back in an organized way. EXHIBIT 1.6 Jennifer Says Jennifer Poulin is a freelance paralegal, working with attorneys in and around Springfield, Massachusetts, in the fields of estate planning, Medicaid planning, and personal injury. After earning a BA in paralegal studies from Elms College in Chicopee, Massachusetts, Ms. Poulin worked as a paralegal at law firms in Hartford, Connecticut, and, later, in Springfield. Jennifer says, ‘‘After working in the fast-paced and demanding field of personal injury for several years, I decided to take a job as an estate planning and elder law paralegal for a change of pace. My concentration of work was the preparation of Medicaid applications for the elder law clients. I would like to say this area of law is like being a financial detective, as preparing these applications requires a great deal of attention to the details of the applicant’s financial background. Typically, the client/applicant is residing in a nursing home, so the attorney and I will often meet with his or her spouse or child to discuss their Medicaid eligibility. This is typically an emotional time as their loved one usually is quite ill and being told he or she will not be returning home. I work with the spouse or the child to gather together all the necessary financial documentation to apply for Medicaid benefits. It takes a great deal of hand-holding during this time, because the spouse or the child of the applicant is typically not in the frame of mind to be sorting through financial documents. Once I compile all the requested paper- work, I will prepare and complete the application, often dedicating a day or two to do so depending on what other work assignments I have. For those interested in pursuing this area of law, it is important to be patient with the applicant’s family by both lending an ear and gently but firmly working with them to gather together the necessary documentation to file in a timely manner. It is also crucial that you pay close attention to details, as you will be responsible for reviewing your client’s financial documents, which can be quite voluminous.

They are certainly skills necessary for success as a paralegal in this area of law.’’ 14 u Chapter 1. The Practice of Elder Law In some cases it may be necessary to go through the client’s accumulated papers and question caregivers, neighbors, and friends about where the client has worked and lived and which businesses the client used. The chart shown in Exhibit 1.7, while not exhaustive, may provide some useful starting points. Of course, it’s not just paralegals who must be aware of the unique needs of elder clients. If a firm practices elder law, everyone must be on board. Some elder law firms regard the receptionist as one of the most important members of the team. That person’s attitude and skills set the tone for the client’s visit. Everyone should be aware that the firm’s clients may be experiencing emotional turmoil, may have physical lim- itations that they are embarrassed to reveal, and may need assistance in ways that other clients do not. No one should think, ‘‘That’s not my job.’’ All members of the firm should adapt how they work — from answering the phone with a wel- coming tone to offering assistance if they see a client alone in the reception area. EXHIBIT 1.7 Sources of Client Information Need Possible source Legal documents: wills, powers of attorney, etc.

Financial, banking, insurance records Ask about in-home safe or safety deposit box.

Talk to client’s previous lawyer.

Ask about in-home safe or safety deposit box.

Contact client’s accountant or tax professional.

Obtain copies of previous year tax filings from http://www.irs.gov/taxtopics/tc156.html , form 4506, to look for information about investment income.

Search state unclaimed property index at http://www. unclaimed.or g. Contact former employers concerning insurance.

Use the Medical Information Bureau to search for policies: http://www.mib.com/html/lost-life-insurance. html . Real estate Search county recorder’s offices in counties in which client lived or frequently visited. Debts Conduct a UCC 11 lien search through Secretary of State — quick link available through http://www.nass.org Family information For birth, adoption, marriage, divorce, and death records, start at the state department of health. The Association of State and Territorial Health Officials, http://www. astho.org , provides links to those departments. UCC Uniform Commercial Code, laws governing commercial transactions Lien Legal claim against an assetto secure repayment of a loan The Paralegal’s Role u 15 Assignments 1. Reconsider the situation in which a husband and wife come together to the firm to write wills. Suppose Jack and Jill’s lawyer is one of five lawyers in a firm. Would the situation change if different lawyers interviewed Jack and Jill? Find your state’s rule concerning Imputation of Conflict of Interest. 2. A longtime client is in the office with her son, in order to sign a deed transferring her house to the son. She is acting as if she is not sure what is going on. You have been asked to notarize the deed. Should you do so?

Visit the Notary Public Code of Professional Responsibility for some insight: http://www.nationalnotary.org/UserImages/Notary_Code.pdf . 3. Search your state’s unclaimed property database for property belonging to members of your family — forgotten bank accounts, etc. Unclaimed property is often transferred to the state under a principle known as escheat. 4. Find the Web site for your county recorder. Write a short summary of how you could search for real estate records. Does the site include a UCC search function? What other documents are available through this office? 5. Find the Web site for your state’s Secretary of State and write a short summary about how you would conduct a UCC search and what types of liens you could find. 6. Use the online ADA Guide for Small Businesses ( http://www.ada.gov/ smbusgd.pdf ) and describe the priorities for removing barriers to ac- cessibility. 7. In 2005 the American Psychological Association and the American Bar Association Commission on Law and Aging published Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers ( http://www.apa.org/pi/aging/resources/guides/diminished-capacity.

pdf ). Review that publication and answer the following questions: a. What are the three legal standards of diminished capacity?

b. What are the ‘‘red flags’’ of diminished capacity?

c. What are the pros and cons of seeking input from a medical pro- fessional? d. What are the ‘‘mitigating factors’’?

e. Does the publication recommend that legal professionals use a formal assessment tool? f. Using the checklist in the handbook, identify factors relevant to assessing capacity in this situation: Sarah Gold was born in Poland in 1934 to Leo and Helen Warshawsky; the immediate family emigrated to the United States in 1936, leaving grandparents, aunts, uncles, and cousins behind. Sarah is a devout Jew. 11UCC refers to the Uniform Commercial Code, which provides (Article 9) for filing of certain security interests. Imputation Attribution of acharacteristic to another Notary Public Person authorized to administer oaths, witnesssignatures, certifyauthenticity of documents Escheat Reversion of property to state, absent heir 16 u Chapter 1. The Practice of Elder Law Her husband, Dr. Leopold Gold (died 5 years ago), son of David and Ruth, was a surgeon and the couple accumulated substantial wealth during their long marriage. Sarah has two children, Helen and David.

Both are college-educated, hard-working, and married. David has a three-year-old son, Cody. Helen has a four-year-old daughter, Madi- son, and is expecting another baby. Sarah has been increasingly distant from her children since the birth of the first grandchild. There have been the usual disagreements about appropriate feeding and training for babies, and people in your office believe that Sarah is a bit jealous of the attention her children focus on the babies. Things came to a crisis when, at a family gathering a few weeks ago, Helen announced that she had learned that her baby will be a girl and that they have chosen the name Riley. The next day Sarah called to make an appointment to change her will (she does this regularly). Because she is angry about the baby’s name, she wants to leave her children nothing. Anger is not new to Sarah; she manifested her grief over the death of her husband by threatening to sue his doctors, the hospital, and even the funeral home.

Sarah has done research on the Internet and, based on her findings, intends to leave her entire fortune to the Holocaust Museum in Skokie, Illinois. 8. Do an Internet search of client intake forms used by attorneys and develop an intake form for an elder law firm. 9. Visit a local law firm. Identify the ways in which its physical layout is ‘‘senior friendly’’ and/or difficult for older clients. 10. Use a search engine to find news articles concerning the attorney and paralegal for Huguette Clark and identify all of the ethical issues you can find. 11. Do some online research and write a short summary of how Medicare fraud occurs and what people can do to prevent it. 12. Critical Thinking: At the end of this chapter, you will find an ab- stracted version of a case, In Re: Mid-America Living Trust Associates, Inc. , which is the basis of the discussion questions that follow. Because the full-length opinion includes extensive analysis of opinions from other states, you may prefer to read the entire case. In later chapters, this book will generally refer you to cases that you can find online (or in bound reporters, if you prefer) so that you can have the benefit of the full opinion, without the additional cost of adding them to the book.

Your school may have a subscription to a computer-assisted legal re- search service, or CALR, such as Lexis, Loislaw, or Westlaw, or you can use free Web sites such as http://www.findlaw.com/casecode or http:// law.lexisnexis.com/webcenters/lexisone . Finding the cases will also improve your online research skills. Mid-America Case: Questions for Discussion u Is the practice of law regulated by the state supreme court in your state?

Is there an administrative agency that conducts investigations, publishes rules, etc.? u Does your state have a definition of ‘‘practice of law’’? CALR Computer-assisted legalresearch The Paralegal’s Role u 17 u Even if the activities described in the case did not constitute unau- thorized practice of law, they could be considered predatory toward senior citizens. Why? Which marketing techniques might make seniors particularly vulnerable? u Can you think of any reason that this company might prefer senior citizens as clients, rather than younger people? Consider both ‘‘cul- tural’’ differences between older and younger people and the reality of life expectancy. u Some people believe that the public would benefit from more compe- tition and that allowing non-lawyers to provide legal services would result in lower fees. Discuss the pros and cons of allowing the client to choose a non-lawyer to provide legal services. u Identify the interests that create a conflict of interests for the review attorneys. Might there be other interests involved? For example, might the trust company make a profit, in addition to the initial fee, if the ‘‘forms’’ typically name a particular financial institution to administer the clients’ assets? u Discuss the risks to client confidentiality inherent to the Mid-America business model. u Does the Mid-America business model provide any reliable way of assessing client competency? u Does this case in any way reduce the role of ‘‘traditional’’ paralegals, working under the supervision of a lawyer who is working directly for a client? Might legalizing non-lawyer practice actually minimize the role of traditional paralegals? Review Questions 1. Identify and discuss the three most common ethical concerns for legal professionals in the practice of elder law. 2. Identify and discuss three barriers to effective communications that are of particular concern in dealing with the elderly. 3. What are the social and economic implications of an aging society?

4. Describe how you would find and organize important documents for a client who cannot provide you with needed information. 5. What are the physical characteristics of an office in which an elder client would feel most comfortable? 6. What is AARP? Do you think that senior citizens have an unfair amount of political power in this country? Why? 18 u Chapter 1. The Practice of Elder Law In Re: MID-AMERICA LIVING TRUST ASSOCIATES, INC. 927 S.W.2d 855 (Mo., 1996) This action was brought by the Chief Disciplinary Counsel (CDC) against respondents Mid-America Living Trust Associates, Inc., and Robert Dillie. The CDC seeks a declaration that respondents have engaged in the unauthorized practice of law and injunctive relief. The CDC has alleged, in particular, that respondents have: 1) rendered legal advice to individuals concerning the need for and advisability of various types of living trusts; 2) gathered information from individuals for use in determining what type of trust is appropriate and in pre- paring trust documents; 3) prepared trust documents for individuals; 4) prepared other legal documents including wills and durable powers of attorneys for indi- viduals; and 5) that Mid-America charged and collected fees for these services.

[The circuit judge enjoined the described activities.] Mid-America works through trust associates that it defines as ‘‘independent contractors’’ to obtain clients . . . usually individuals with a financial planning business, insurance business, or stock brokerage business who have learned of Mid-America through education programs sponsored by Mid-America or ad- vertising in trade publications. Trust associates may attend ‘‘Estate-Planning School,’’ a training seminar put on by Mid-America, and all have signed a stan- dard contract agreement [that] includes a clause instructing the contractor to ‘‘not give any tax or legal advice to clients; make, alter or discharge any wills or trusts, incur any liability on behalf of Mid-America Living Trust Associates.’’ The ‘‘trust associate’’ who recommends and sells a living trust also gathers personal and financial information from the client by completing a workbook provided by Mid-America. Clients may choose their own attorney or an attorney recommended by Mid-America who has agreed to review trust documents. If a Mid-America review attorney is selected by the client, the trust associate directs the client to make out two checks: one to Mid-America and one to the review attorney. The workbook and the checks are mailed to Mid-America. Mid-America paralegals contact the client and verify the information. The paralegals, based on input from in-house counsel, the review attorney, or per- sonal experience, decide which form of trust would be most appropriate and draft initial documents from blank prototypes. The prototypes include forms for single and married persons in community and noncommunity property states. The marital trust prototype includes joint marital trust documents and separate trust documents. There are documents for estates having tax consequences and forms for pour-over wills, durable and general powers of attorney, health care declarations, and health care powers of attorney. The trust documents, work- book, and attorney check are then mailed to the review attorney. The review attorney sometimes communicates directly with the client, but not always. The paralegal makes changes if directed to by the attorney. The documents are then mailed to the trust associate, who delivers the documents for execution by the client. Mid-America also provides assistance in retitling assets and preparing quitclaim deeds. . . . Mid-America has utilized three Missouri attorneys as review attorneys. The review attorneys have charged clients fees ranging from $100 to $250. The clients typically pay between $595 and $1,995 for Mid-America’s services. Mid-America pays the trust associates a commission for each trust they recommend to Mid-America in accordance with a written schedule.

In Re: Mid-America Living Trust Associates, Inc. Case u 19 In the first page of the Training and Procedures Manual provided to all trust associates, Mr. Dillie ‘‘welcomes’’ Mid-America’s trust associates to ‘‘our ‘Family’ of Associates’’ and encourages them ‘‘in [their] new business adventure — great success in the living trust industry.’’ The manual and a training video alone, according to the manual, explain what a trust is, why trusts are beneficial, how to complete the estate plan, and, particularly, ‘‘how to make a successful sales pre- sentation and close a sale.’’ The manual explains how to fill out the workbook and gives a brief synopsis of the legal issues the client should be aware of when selecting a trustee, personal representative, conservator, guardian, or the person to designate as a durable power of attorney. The manual explains different ways to distribute property or exclude relatives from the trust, as well as other important information.

Significant differences between state laws are also highlighted. The manual tells associates to encourage clients to choose one of Mid- America’s review attorneys: Have your clients list the attorney of their choice — for obvious reasons we hope they choose our recommended attorney — on the line provided. ‘‘In the bizarre instance where the clients want their own attorney, explain that the trust will have to be sent to that attorney for review and they will be responsible for that attorney’s fees, which could be substantially more than $100. If they persist, understand that this trust, if sent to their attorney, will very likely be can- celed — since their attorney will probably offer to do the trust for them.’’ The manual also instructs the trust associates not to share the name of the review attorney with the client unless they specifically request it, to avoid ‘‘any unlawful solicitation on behalf of the attorney.’’ According to one of the trust associates, the clients are instructed to make their checks out to ‘‘Review Attorney’’ [and] instructed to sign an ‘‘Attorney Representation’’ form stating that the client recognizes ‘‘[a] potential conflict of interest between the Corporate Attorney’s preparation of my/our estate documents and his representation of Mid-America exists and I/we consent thereto.’’ The clients also sign a ‘‘Disclosure and Compliance’’ form which states that ‘‘I/We understand that the representative is not an attorney or certified tax authority, and I have been advised to consult an attorney and/or tax accountant for tax or legal advice.’’ The consequences of incompetent representation are especially dangerous because they are often invisible for many years, but then cause great hardship and expense, such as when a deed, will, or trust is found to be ineffective or not to achieve the results originally intended. Accordingly, we seek to allow only those who have been found by investigation and examination to be properly prepared and skilled to practice law and who demonstrate that they conform to higher standards of ethical conduct necessary in fiduciary and confidential relationships. The ‘‘practice of law’’ is defined [by Missouri statute] as: ‘‘the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.’’ The ‘‘law business’’ is defined as: ‘‘the advising or counseling for a valuable consideration of any person, firm, association, or cor- poration as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument 20 u Chapter 1. The Practice of Elder Law affecting or relating to secular rights or the doing of any act for a valuable con- sideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association, or corporation any property or property rights whatsoever.’’ Although the ‘‘practice of law’’ includes acts done both in and out of court, ‘‘law business’’ in particular implies that a non-lawyer has ‘‘held himself out’’ in a business ‘‘by repeated acts’’ or ‘‘by the exaction of a con- sideration’’ in which he acts in the same capacity as a lawyer. These statutes are ‘‘primarily intended to protect the public from the rendition of certain services, deemed to require special fitness and training on the part of those performing the same, by persons not lawfully held to possess the requisite qualifications.’’ This Court has attempted to maintain a ‘‘workable balance’’ in these matters between the public’s protection and the desired efficiency and economic benefits that result from a competitive marketplace. We allow non-attorneys to perform routine services, ancillary to other valid activities and without compensation, such as the filling in of blanks in approved form real estate documents. Also, non- attorneys may sell generalized legal publications and ‘‘kits,’’ so long as no ‘‘personal advice as to the legal remedies or consequences flowing therefrom’’ is given. The need for public protection demands the strictest scrutiny when the exercise of judgment and discretion is applied to the particular legal needs of an individual. The marketing and drafting of living trusts and related legal instruments by non-lawyers is not unique to Missouri. It has been the subject of substantial criticism by groups appearing before the Senate Special Committee on Aging (Sept. 24, 1992) [and] the subject of criticism by legal commentators. Trust marketing schemes have been rejected repeatedly by court decisions and state ethic opinions as the unauthorized practice of law. Generally, critics argue three types of harm de- velop from trust marketing schemes by non-lawyers. First, unregulated solicitation by non-lawyers allows for abusive marketing practices, particularly aimed at the elderly. Second, there is no assurance of competency by non-lawyers. Third, a conflict of interest exists between those who benefit from the sale of a particular legal instrument and the client for whom that legal instrument may not be appropriate. Legal commentators have noted high-pressure tactics and exaggerated benefits used to promote living trusts. Lori A. Stiegal et al., On Guard Against Living Trusts Scams, NBA Nat’l B. Ass’n Mag., January/February 1994.

Representatives solicit customers ‘‘by telephone, mail, newspaper advertisements, door-to-door, and in ‘seminars’ presented in hotels and restaurants.’’ Charles F.

Gibbs, The Marketing of Living Trusts by Non-Attorney Promoters, 20 ACTEC.

‘‘The public, particularly senior citizens, are told that the living trust is a cure-all for the problems entailed in asset management and wealth transfer, a claim with no more validity than the curative claim for snake oil.’’ . . . ‘‘The non-lawyer who sold the trust told the couple it would cost their sons $65,000 to settle their estate through probate and the courts.’’ . . . Trust company recommended ‘‘that ‘everyone’ with an estate over $50,000 should have a living trust.’’ The competency of non-lawyers to draft estate documents was questioned by Barlow F. Christensen in his article, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors — Or Even Good Sense?, 1980 Am.

B. Found. Res.J. 159 (1980). Although generally opposed to heavy regulation of the legal practice, Christensen acknowledged that ‘‘proficiency in the field of estate planning requires knowledge of difficult and technical fields of law — In Re: Mid-America Living Trust Associates, Inc. Case u 21 estates, trusts, wills, and tax law — that may not be at the command of the average insurance agent. . . . [M]ost insurance agents have not had extensive further training, and as a general matter the competency of insurance agents in the drafting of estate plans would seem to be questionable at best.’’ Courts [in several states] have held that trust marketing companies and their employees practice law by advising and counseling clients that a specific of estate plan or trust is needed and by preparing and drafting the necessary trust docu- ments. Courts have found that attorneys participating in such schemes violate their ethical duties not to assist in the unauthorized practice of law and to avoid conflicts of interest [and] have noted actual harm to trust clients and the sub- stantial fees charged. All courts that have addressed the issue have held that non- lawyer trust salespeople render legal advice and engage in the unauthorized practice of law when they recommend living trusts to specific individuals. . . .

Even if the advice is termed as a ‘‘suggestion’’ or the client is encouraged to consult his own attorney, courts have still found that financial planners or in- surance salespeople cannot advise a client as to his or her specific need for a particular form of disposition without practicing law illegally. Referral attorneys, as well as in-house attorneys, have also been found to suffer from a conflict of interest. Obviously, an attorney’s interests are divided by simultaneously working for a trust marketing company and attempting to rep- resent the company’s clients. . . . However, attorneys who regularly receive referrals from trust marketing companies, without being directly employed by them, also have been found to suffer from a conflict of interest. An attorney’s advice may be tainted by his desire to continue receiving referrals. Mid-America notes that the paralegals drafting the trusts are directly su- pervised by in-house counsel. However, the in-house counsel is employed by Mid-America, not the client, and has a direct conflict of interest. . . . Likewise, the review attorney cannot ‘‘cure’’ Mid-America’s unauthorized practice of law for three reasons. First . . . the review attorney enters the picture too late. Mid- America’s non-lawyer trust associate has already given legal advice ..., recom- mended and sold a trust instrument, and received valuable consideration. Mid- America has also drafted a custom document tailored to the client’s particular needs, prior to the participation of the review attorney. Second, participation by review attorneys in Mid-America’s trust marketing businesses violates rules of conduct . . . and cannot cure the unauthorized practice of law. See Rule 4-5.4(c); Rule 4-5.5(b) . . . [A]ttorneys reviewing or drafting legal documents recom- mended or drafted by non-attorneys are aiding in the unauthorized practice of law or working with a conflict of interest. Finally, although Mid-America claims to welcome independent review, it actually instructs trust associates to avoid review by truly independent attorneys, and to encourage clients to choose an attorney from Mid-America’s approved referral list. . . . Mid-America appears to discourage individualized contact between the client and recommended attor- neys as well. . . . The manual states that ‘‘we do not give them the name of the attorney unless THEY request it,’’ purportedly to avoid attorney solicitation. One trust associate interviewed indicated that ‘‘the instructions from Mid-America were to make the attorney check payable to ‘Review Attorney,’’’ and not directly to the attorney chosen. Mid-America further stipulated that ‘‘review attorneys sometimes, but not always, communicate directly with the clients.’’ 22 u Chapter 1. The Practice of Elder Law A brief review of the testimony of on e of Mid-America’s review attorneys, Griesedieck, reveals the inadequacy of Mid- America’s review scheme. Ms. Griesedieck reviewed six cases referred to her, five of which she advised to seek a refund from Mid- America....It is significant that five o f the six trusts that Mid-America’s trust associates recommended, gathered information on, and accepted payment for, were not appropriate for the individual client. The potential for harm and the actual harm caused by unlicensed persons advising individuals regarding their legal decisions and drafting living trusts outweighs any savings or additional service to the public. . . . Accordingly, we modify the recommendations of the Master and order that: 1. Mid-America and its non-lawyer agents, servants, employees, and trust associates cease soliciting, counseling, recommending, and selling trusts, wills, and all other legal instruments, for valuable consideration, to Missouri residents; 2. Mid-America and its non-lawyer agents, servants, employees and trust associates cease drawing, preparing, or assisting in the preparation of trust workbooks, trusts, wills, and powers of attorney, for valuable consideration, for Missouri residents without the direct supervision of an independent licensed attorney selected by and representing those individuals .... In Re: Mid-America Living Trust Associates, Inc. Case u 23 ACROSS 1. obligation to protect secrecy of client information 5. mental disorder, reality is distorted 8. UCC, Uniform Code 11. conflict of , divided loyalties 14. initials, law that concerns people with disabilities 15. nonprofit organization, works to improve lives of older people 16. mental deterioration 17. reponsible for incompetent person DOWN 1. reponsible for assets of incompetent 2. public, witnesses signatures 3. ability to make sound decisions 4. federal law requires responsable of disabilities 6. protection against forced disclosure of client communications 7. legal claim against property to secure payment 9. property reverts to state 10. attribution of a characteristic to another 12. the ‘‘c’’ in CALR 13. protected person 24 u Chapter 1. The Practice of Elder Law 2 uuu Advance Directives uuu Overview: Options Available for Advance Directives Surrogate Decision Making Without Advance Directives Advance Directives Living Wills What You Need to Know Powers of Attorney Effective Dates Choosing an Agent Powers Given the Agent Drafting Agent Obligations Step-by-Step Guidelines Objectives When you complete this chapter, you will: . Know the options available for various types of advance directives. . Identify the factors relevant to choosing the best advance directive for a particular client. . Recognize the considerations relevant to drafting an advance directive. . Draft a power of attorney. 25 Overview: Options Available for Advance Directives There are many legal tools available for dealing with competency issues. The choice of the appropriate tool depends on a number of factors. Keep in mind that physical frailty is not the same as incompetency, and that incompetency raises two separate problems: decisions about the person’s care and decisions about the person’s property. For property decisions, the options include:

. Power of attorney for property, also called a financial power of attorney. . Trust, an arrangement under which a trustee manages property for the benefit of a beneficiary. Trusts are explored, in detail, in Chapters 7 and 8. . Use of a representative payee to manage the individual’s income. This chapter will focus primarily on care decisions. For care decisions, the options include: . Advance directives, such as a living will or health care power of attorney, which may be temporary or may become effective only at the happening of a future event. Advance directives are generally considered the best way of dealing with competency issues, but are possible only while the client is competent. . Conservatorship or guardianship, a legal process for appointment of a person or entity to make decisions with respect to the person and/or property of the incapacitated person (discussed in the Chapter 3). This is generally considered the last option. As you read about these options, focus on function. What is called a ‘‘living will’’ in one state may be called an ‘‘advance health care directive’’ in another, but the functions are the same.

Surrogate Decision Making Without Advance Directives Many people believe that if they become unable to make decisions, those deci- sions can automatically be made by a spouse or an adult child. Spouses and adult children sometimes attempt to make medical decisions on behalf of their spouses or parents without any legal basis for doing so. In fact, some states have default surrogate decision-making laws , but other states do not. In a state without such a law, the family of an individual without an advance directive might have to obtain a guardianship, an expensive and time-consuming process described in Chapter 3. Representative Payee Person designated to receivepayments, such as social security Default Surrogate Decision-Making Laws Laws identifying who maymake decisions forincompetent individual, absent instructions from that individual 26 u Chapter 2. Advance Directives Ti p Find out where your state stands: http://new.abanet.org/aging/Pages/Sta- teLawCharts.aspx Even if a state does have a law identifying surrogate decision makers, it might not be consistent with the client’s wishes, it might not grant the surrogate the level of authority needed, it might cause a family conflict, or it may designate, as a surrogate, an individual who is unavailable or unable to make a decision. By executing an advance directive, a client can either state preferences in advance of need or identify an individual to make decisions about her care and property in the event of incapacity. The authority of surrogates and guardians acting without written direction from the patient has been the subject of several very contro- versial court decisions. The decisions at issue were matters of life and death, and the courts had to confront conflicting values and beliefs. The most recent case, Schiavo ,1demonstrates the pitfalls of relying on sur- rogate decision-making laws. The case involved a conflict between the husband of a woman in a vegetative state and the woman’s parents. State law gave the husband surrogate decision-making authority. A state court had entered an order allowing removal of a feeding tube, based on ‘‘clear and convincing evidence that Theresa Schiavo was in a persistent vegetative state and that Theresa would elect to cease life-prolonging procedures if she were competent to make her own decision.’’ 2The case nonetheless proceeded to involve enactment of a special law, extensive media coverage and political pressure, and, ultimately, the federal courts. A federal appeals court refused to enter a restraining order to require restoration of a feeding tube. The Supreme Court refused to stay the decision. The ‘‘clear and convincing evidence’’ standard was established in Cruzan v. Director, Missouri Dept. of Health ,3in which the parents of a young woman in a persistent vegetative state wanted to remove life support. The woman had no written advance directive, but had stated that ‘‘if sick or injured she would not wish to continue her life unless she could live at least halfway normally.’’ The state court held that, absent clear and convincing evidence of her wishes, she should remain on life support. The Supreme Court affirmed. Years earlier, in Quinlan ,4the New Jersey Supreme Court had permitted removal of a respirator under similar cir- cumstances, basing its decision on the patient’s right to privacy, her guardian’s right to assert that interest, and medical evidence that the patient would never recover. In those cases, the courts, families, and medical professionals were faced with trying to determine what a patient would have wanted given a choice between death and life in a vegetative state — a choice that even the patient would not 1403 F.3d 1223 (11th Cir. 2005)2780 So. 2d 176 (Fla. App. 2001)3497 U.S. 261 (1990)4355 A.2d 647 (N.J. 1976) Surrogate Decision Making Without Advance Directives u 27 have made easily. They were faced with evidence about religious beliefs, medical miracles, financial motives, and much more. Even in cases that involve less serious issues and do not gain notoriety, families can be torn apart by disagreements among siblings, concerns about privacy, and patients resisting treatment. Proper documentation of the patient’s wishes can avoid the stress, loss of privacy, and expense the families endured in those cases. End-of-life issues, right to refuse treatment, and assisted suicide are dis- cussed in detail in Chapter 12. Advance Directives By executing an advance designation of a surrogate to act in the event of incapacity, the client could solve part of the problem without giving instructions or expressing wishes. Doing so would, however, put the surrogate in a very difficult position and possibly open the door to legal challenges. The client can also express wishes without identifying a surrogate to act. With the number of options available, there are endless opportunities for confusion and contradiction. As a paralegal, you must determine whether your client has any existing advance directives and make sure that the client does not have or create directives that might result in a conflict. Some advance directives indicate the client’s wishes without identifying an individual responsible for making decisions not covered by those wishes. If those wishes are not likely to be controversial, such a document may be adequate to handle a particular issue. For example, a client might sign an organ donation card, also called a directive for anatomical giving . In order to promote anatomical giving and strengthen the respect given organ donations, most states have adopted the Uniform Anatomical Gifts Act promulgated by the National Conference of Commissioners on Uni- form State Laws. The Uniform Act simplifies procedures and imposes duties on hospitals and government agencies. Find out what your state is doing at http://www.anatomicalgiftact.org/DesktopDefault.aspx?tabindex2&tabid72 and http://organdonor.gov/research/acotapp6.htm. Similarly, a living will medical directive describes a patient’s wishes with respect to health care in the event that he is unable to make decisions. It typically does not identify a decision maker and is directed at health care providers. A DNR order, based on an agreement between a doctor and a competent termi- nally ill patient or the authorized representatives of a terminally ill patient, is similar in that it states a specific request with respect to medical care and is directed at caregivers without identifying a surrogate decision maker. Anatomical Giving Organ donation or giving body to scientific research Living Will Document containing instructions about health care DNR Medical order — do notresuscitate 28 u Chapter 2. Advance Directives A health care proxy , on the other hand, identifies a person to make health care decisions on behalf of the patient. A health care proxy is sometimes called a power of attorney for health care and can serve both purposes — naming a de- cision maker and describing the patient’s wishes. In executing a power of at- torney (POA), the principal appoints an agent 5to make decisions and take actions. The agency relationship is a matter of ‘‘getting things done.’’ It generally does not involve transfer of ownership, create support obligations, or change the tax status of the individuals. Every state has its own law governing advance directives. Find your state’s law concerning living wills at http://estate.findlaw.com/estate-planning/living- wills/estate-planning-law-state-living-wills.html . To find the power of attorney statute for your jurisdiction, visit http://www.abanet.org/aging/about/pdfs/pow- er_of_attorney_laws_citations_by_state.pdf or http://www.abanet.org/rppt/cmtes/ pt/e1/pte1_state_statutes.html or http://law.findlaw.com/state-laws/durable- power-of-attorney . Because discussion of each state’s individual laws would be impossible, much of the discussion that follows is based on the Uniform Health-Care Decisions Act and the Uniform Power of Attorney Act, promulgated by the National Confer- ence of Commissioners on Uniform State Laws. A NCCUSL uniform law is not law until it is adopted by a particular state, but many states have laws that mirror the Uniform Acts. It is essential that you understand what the laws of your state require. Living Wills A living will, or medical directive, is directed to health care providers and instructs the doctors and hospitals about the patient’s wishes in specific situations. Some states limit their use to situations involving terminal illness, permanent loss of consciousness, or other advanced illness. The current trend is to use a more flexible definition, as demonstrated by the Michigan definition reproduced in Exhibit 2.1. Of course, these directives are valid only in situations involving a patient unable to make her own decisions. A patient who is able to make and communicate decisions can direct her own care, regardless of having previously executed a medical directive. Because the client does not know in advance what her end-of-life circumstances will be, living wills tend to be general, rather than specific, and can leave gaps. Another disadvantage of a living will is that it is effective only if the hospital or doctor is aware of it. The patient’s doctor and neighborhood hospital may have copies of his living will, but they will do no good if the patient is rushed to a hospital, unconscious, while on vacation in another state. To minimize the likelihood that a living will might be overlooked or lost, the client should carry a card stating that he has a living will, and may want to register the will so it can be available to medical providers at any location. The U.S. Living Will Registry provides such a service: http://www.uslivingwillregistry.com . Several states have similar registries.

5The term attorney-in-fact is synonymous with agent , but is not used in this text to avoid confusion with attorney at law . Health Care Proxy Identifies person to makehealth care decisions Power of Attorney Document in which principal appoints agent toact on her behalf Principal Person who appoints and is affected by actions of agent Agent One who acts on behalf of a principal Terminal Describing an illness likely to result in death Advance Directives u 29 The Patient Self-Determination Act, or PSDA , reproduced in Exhibit 2.2, requires that health care providers have policies and provide patients with certain information concerning advance directives, including living wills. The best way to EXHIBIT 2.1 Terminology Michigan amended its Dignified Death Act to include the following definition and eliminate an earlier definition of terminal as describing a patient having a life expectancy of less than six months. This definition gives both doctors and patients more flexibility in determining appropriate treatment. 333.5653 Definitions (1) As used in this part:

(a) ‘‘Advanced illness,’’ except as otherwise provided in this subdivision, means a medical or surgical condition with significant functional impairment that is not reversible by curative therapies and that is anticipated to progress toward death despite attempts at curative therapies or modulation, the time course of which may or may not be determinable through reasonable medical prognostication. For purposes of section 5655(b) only, ‘‘advanced illness’’ has the same general meaning as ‘‘terminal illness’’ has in the medical community.

Other medical terms commonly used in connection with end-of-life decisions:

. Artificial Sustenance : fluids and nutrition provided by a feeding tube or intravenous means . Brain Death : irreversible loss of brain function and activity, including involuntary activity necessary to sustain other organs . Chronic : persistent or recurring . CPR : cardiopulmonary resuscitation: an emergency procedure consisting of external cardiac massage and artificial respiration . DNR : a medical order: do not attempt resuscitation in case of cardiac or respiratory arrest . Hospice Care : care provided to patients with terminal conditions; includes palliative care . Palliative Care : care that provides relief of the pain, stress, and other debilitating symptoms of serious illness, regardless of whether the illness itself is treatable or curable . Persistent Vegetative State : severely impaired consciousness in which pa- tient is incapable of voluntary motion or communication . Unconscious : without awareness or sensory perception PSDA Patient Self-Determination Act, a federal law 30 u Chapter 2. Advance Directives EXHIBIT 2.2 42 U.S.C. 1395cc: Patient Self-Determination Act (PSDA) (f) Maintenance of written policies and procedures (1) For purposes of subsection (a)(1)(Q) of this section and sections 1395i–3 (c)(2)(E), 1395l (s), 1395w–25 (i), 1395mm (c)(8), and 1395bbb (a) (6) of this title, the requirement of this subsection is that a provider of services, Medicare þChoice organization, or prepaid or eligible organization (as the case may be) maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization — (A) to provide written information to each such individual concerning — (i) an individual’s rights under State law (whether statutory or as recognized by the courts of the State) to make decisions concerning such medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives (as defined in paragraph (3)), and (ii) the written policies of the provider or organization respecting the implementation of such rights; (B) to document in a prominent part of the individual’s current medical record whether or not the individual has executed an advance directive; (C) not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive; (D) to ensure compliance with requirements of State law (whether statutory or as recognized by the courts of the State) respecting advance directives at facilities of the provider or organization; and (E) to provide (individually or with others) for education for staff and the community on issues concerning advance directives. Subparagraph (C) shall not be construed as requiring the provision of care which conflicts with an advance directive.

(2) The written information described in paragraph (1)(A) shall be provided to an adult individual — (A) in the case of a hospital, at the time of the individual’s admission as an inpatient; (B) in the case of a skilled nursing facility, at the time of the individual’s admission as a resident; (C) in the case of a home health agency, in advance of the individual coming under the care of the agency; (D) in the case of a hospice program, at the time of initial receipt of hospice care by the individual from the program; and (E) in the case of an eligible organization (as defined in section 1395mm (b) of this title) or an organization provided payments under section 1395l (a)(1)(A) of this title or a Medicare þChoice organization, at the time of enrollment of the individual with the organization. Advance Directives u 31 avoid refusal to honor a living will is to provide duplicate originals to the client’s health care professionals and facilities (nursing home, hospital) and to a trusted family member or close friend before it is needed, so that any objections can be raised immediately. The firm should also keep a duplicate original. If the client has a home in another state, make sure that she has a living will that complies with the laws of that state and that the health care providers in that location have copies. The patient should be told to discuss her wishes with her doctors and family members as soon as possible. The topic of death is difficult, but having this discussion is essential in order to avoid conflict during a time of crisis for the client. See Exhibit 2.3. EXHIBIT 2.3 Doctor Ron Says: The Importance of the Hard Conversation Aging inevitably brings changes in health. While some diseases occur as a result of lifestyle, such as lung disease and various forms of cancer from smoking or liver disease from excess alcohol consumption, many diseases, such as hypertension, arthritis, and dementia, are natural consequences of aging. It is impossible to predict when illness will strike or how serious it will be, so people must be prepared. Dr. Ronald Hirsch is a Board-Certified Internal Medicine Specialist. He is Chairman of the Board of Health for his city, Elgin, IL, where he spearheaded a drive to ban smoking, and Medical Director for Case Management at Sherman Hospital. Medicare spent $50 billion in 2008 on care provided to patients in the last two months of their lives. Much of this care was provided in costly intensive care units with state-of-the-art technology that can prolong life indefinitely. Many of the patients never talked to their families about end-of-life wishes. A living will provides some guidance, but the wording limits its use to situations where it is clear to everyone that survival is unlikely. A power of attorney for health care designates a family member to make those hard decisions, but without knowing what the patient would want, loved ones often defer to ‘‘doing everything,’’ hoping for a miracle. While a physician’s duty is to provide accurate medical information to a patient, failure to inform can also have financial consequences. In Arato v. Avedon ,a physician was sued for not disclosing to a patient his life expectancy from pancreatic cancer. He died without having made proper financial preparations, resulting in substantial losses for his heirs, so it is incumbent on physicians to provide realistic estimates of life expectancy and advise patients to plan both medically and finan- cially for death. It is important for patients to realize that death is not optional and will arrive sooner or later, perhaps even suddenly, and failure to prepare can have devastating consequences, both emotional and financial, for heirs. Duplicate Originals Multiple copies of adocument with original (not copied) signatures 32 u Chapter 2. Advance Directives Ti p Helping the Client: The American Bar Association has an online toolkit with excellent suggestions for the conversations clients should have with their agents, family members, and health care providers, as well as questions they should ask themselves: http://www.abanet.org/aging/toolkit. Arato v. Avedon , Supreme Court of California, 858 P.2d 598 (1993) [summary] The family of a deceased cancer patient sued the treating physicians, alleging that the doctors failed to inform the decedent fully about the illness prior to treat- ment. They claimed that if the decedent had known of his low statistical life expectancy, he would have forgone treatment and tended to his financial affairs, and that, as a result of the failure to disclose, they suffered business, real estate, and tax losses. The Court of Appeal reversed a defense verdict, holding that defendants had breached a duty to obtain informed consent by failing to dis- close information material to the decision whether to undergo treatment, and that the jury instructions were misleading as to that duty. The Supreme Court reversed and remanded with directions to affirm the trial court. The Court of Appeal erred in determining that defendants had breached a duty. Although a physician has a duty to disclose all information material to the decision to undergo a course of treatment, it is for the jury to determine whether there is a duty to make a particular disclosure; it is not a matter of law that statistical life expectancy information is material. The jury instructions adequately conveyed the legal standard governing evaluation of the sufficiency of dis- closures. The doctrine of informed consent does not impose a duty upon phy- sicians to disclose information material to a patient’s nonmedical interests. Since the propriety of disclosing statistical life expectancy information to a cancer pa- tient depends on the standard of practice within the medical community, expert testimony was properly admitted at trial for the limited purpose of illustrating community practice. Informed Consent Consent given voluntarily, after disclosure of adequate information Advance Directives u 33 EXHIBIT 2.3 (continued) What You Need to Know The law differs from state to state. Examine the Arizona law, reproduced in Exhibit 2.4, which is fairly typical. It: . Includes a standard form, but does not require use of that form. . Grants health care professionals immunity from liability for actions taken in good faith. . Requires language that clearly indicates the intent of the patient. . Requires that the form be dated and signed or marked by the patient, or, if the patient is unable to sign or mark the document, a notary or witness can verify the patient’s wishes. . Requires that the document be notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present and that the person appeared to be of sound mind and free from duress at the time. . Requires that the notary or witness not be a person designated to make medical decisions on the principal’s behalf or a person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed. . Requires that if the directive is witnessed by only one person, that person may not be related to the principal and may not be entitled to any part of the principal’s estate. Find your state statute and write a summary of its requirements for a living will. How does the statute address the requirements of the PSDA? What is re- quired of a health care provider that does not want to honor a living will? EXHIBIT 2.4 Arizona Statute 7 36-3261. Living will; verification; liability A. An adult may prepare a written statement known as a living will to control the health care treatment decisions that can be made on that person’s behalf. The person may use the living will as part of or instead of a health care power of attorney or to disqualify a surrogate. B. If the living will is not part of a health care power of attorney, the person shall verify his living will in the same manner as prescribed by section 36-3221. C. A health care provider who makes good faith health care decisions based on the provisions of an apparently genuine living will is immune from criminal and civil liability for those decisions to the same extent and under the same conditions as prescribed in section 36-3205.

7http://www.azleg.gov/ArizonaRevisedStatutes.asp 34 u Chapter 2. Advance Directives 36-3262. Sample living will Any writing that meets the requirements of this article may be used to create a living will. A person may write and use a living will without writing a health care power of attorney or may attach a living will to the person’s health care power of attorney. If a person has a health care power of attorney, the agent must make health care decisions that are consistent with the person’s known desires and that are medically reasonable and appropriate. A person can, but is not required to, state the person’s desires in a living will. The following form is offered as a sample only and does not prevent a person from using other language or another form: Living Will (Some general statements concerning your health care options are outlined below. If you agree with one of the statements, you should initial that statement.

Read all of these statements carefully before you initial your selection. You can also write your own statement concerning life-sustaining treatment and other matters relating to your health care. You may initial any combination of paragraphs 1, 2, 3 and 4 but if you initial paragraph 5 the others should not be initialed.) 1. If I have a terminal condition I do not want my life to be prolonged and I do not want life-sustaining treatment, beyond comfort care, that would serve only to artificially delay the moment of my death. 2. If I am in a terminal condition or an irreversible coma or a per- sistent vegetative state that my doctors reasonably feel to be irreversible or incurable, I do want the medical treatment necessary to provide care that would keep me comfortable, but I do not want the following: (a) Cardiopulmonary resuscitation, for example, the use of drugs, electric shock and artificial breathing. (b) Artificially administered food and fluids.

(c) To be taken to a hospital if at all avoidable. 3. Notwithstanding my other directions, if I am known to be preg- nant, I do not want life-sustaining treatment withheld or withdrawn if it is possible that the embryo/fetus will develop to the point of live birth with the continued application of life-sustaining treatment. 4. Notwithstanding my other directions, I do want the use of all medical care necessary to treat my condition until my doctors reasonably conclude that my condition is terminal or is irreversible and incurable or I am in a persistent vegetative state. 5. I want my life to be prolonged to the greatest extent possible. Advance Directives u 35 EXHIBIT 2.4 (continued) Other or Additional Statements of Desires I have I have not attached additional special provisions or limitations to this document to be honored in the absence of my being able to give health care directions.

36-3221. Health care power of attorney; scope; requirements; limitations; fiduciaries A. A person who is an adult may designate another adult individual or other adult individuals to make health care decisions on that person’s behalf or to provide funeral and disposition arrangements in the event of the person’s death by executing a written health care power of attorney that meets all of the following requirements: 1. Contains language that clearly indicates that the person intends to create a health care power of attorney. 2. Except as provided under subsection B of this section, is dated and signed or marked by the person who is the subject of the health care power of attorney. 3. Is notarized or is witnessed in writing by at least one adult who affirms that the notary or witness was present when the person dated and signed or marked the health care power of attorney, except as provided under subsection B, and that the person appeared to be of sound mind and free from duress at the time of execution of the health care power of attorney.

B. If a person is physically unable to sign or mark a health care power of attorney, the notary or each witness shall verify on the document that the person directly indicated to the notary or witness that the power of attorney expressed the person’s wishes and that the person intended to adopt the power of attorney at that time. C. A notary or witness shall not be any of the following:

1. A person designated to make medical decisions on the principal’s behalf.

2. A person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed.

D. If a health care power of attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage or adoption and may not be entitled to any part of the principal’s estate by will or by operation of law at the time that the power of attorney is executed. E. A person whose license as a fiduciary has been suspended or revoked pursuant to section 14-5651 may not serve as an agent under a power of attorney in any capacity unless the person is related to the principal by blood, adoption or marriage. This prohibition does not apply if the person’s license has been reinstated and is in good standing. 36 u Chapter 2. Advance Directives EXHIBIT 2.4 (continued) Powers of Attorney A power of attorney or proxy can be used to authorize an agent to act with respect to either health care or property decisions (or, in some states, both) and generally provides more flexibility. With that flexibility, there are choices. A power of attorney can be immediately effective or it can be a springing power , which will come into effect at a future time (e.g., ‘‘when my doctor certifies in writing that I am unable to handle my own affairs’’). A durable power continuesafteritssignerbecomesin- competent, which, of course, is usually the intent of the principal, particularly with respect to health care decisions. It can be a special or limited power ,limitedtoa particular transaction, such as the sale of a house, or it can be limited to certain categories of actions and decisions, suc hashealthcareorproperty.Apowerof attorney that delegates all possible authority is referred to as universal .Thepowerof attorney can give the agent broad discretion or it might include specific instructions. Be sure to learn the law in your state. Does the law require special language to make the power durable or does it presume durability? Can you combine a health care power of attorney with a power for property, or must they be sepa- rate? Is a separate form required for medical records? While some states have statutory forms of power of attorney (like the Texas forms shown in Exhibit 2.5), the form should never be used until the client is fully informed about the options, has talked to her doctor and/or family members, and has made a decision. EXHIBIT 2.5 Texas Statutory Powers of Attorney [TEXAS] STATUTORY DURABLE POWER OF ATTORNEY 8 NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPE- TENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH CARE DECI- SIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO.

I, (insert your name and address), appoint (insert the name and address of the person appointed) as my agent (attorney-in-fact) to act for me in any lawful way with respect to all of the following powers except for a power that I have crossed out below.

8http://www.statutes.legis.state.tx.us/Docs/PB/htm/PB.XII.htm Springing Power Power that becomes effective in the future Durable Power Power that remains validdespite incompetence ofprincipal Special or Limited Power Power of attorney for specific transactions Universal Describing a power ofattorney granting allauthority permitted by law Discretion Freedom to make decisions based on one’s ownjudgment Powers of Attorney u 37 TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD. Real property transactions; Tangible personal property transactions; Stock and bond transactions; Commodity and option transactions; Banking and other financial institution transactions; Business operating transactions; Insurance and annuity transactions; Estate, trust, and other beneficiary transactions; Claims and litigation; Personal and family maintenance; Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service; Retirement plan transactions; Tax matters. IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY AGENT (ATTORNEY-IN-FACT) SHALL HAVE THE POWER AND AUTHORITY TO PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I WERE PERSON- ALLY PRESENT.

SPECIAL INSTRUCTIONS:

Special instructions applicable to gifts (initial in front of the following sentence to have it apply):

I grant my agent (attorney-in-fact) the power to apply my property to make gifts, except that the amount of a gift to an individual may not exceed the amount of annual exclusions allowed from the federal gift tax for the calendar year of the gift.

ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUC- TIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.

UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF AT- TORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. 38 u Chapter 2. Advance Directives EXHIBIT 2.5 (continued) CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE ALTERNATIVE NOT CHOSEN:

(A) This power of attorney is not affected by my subsequent disability or inca- pacity.

(B) This power of attorney becomes effective upon my disability or incapacity.

YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF AT- TORNEY IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.

IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE ALTERNATIVE (A).

If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this power of attorney, I shall be considered disabled or incapaci- tated for purposes of this power of attorney if a physician certifies in writing at a date later than the date this power of attorney is executed that, based on the physician’s medical examination of me, I am mentally incapable of managing my financial affairs. I authorize the physician who examines me for this purpose to disclose my physical or mental condition to another person for purposes of this power of attorney. A third party who accepts this power of attorney is fully protected from any action taken under this power of attorney that is based on the determination made by a physician of my disability or incapacity.

I agree that any third party who receives a copy of this document may act under it. Revocation of the durable power of attorney is not effective as to a third party until the third party receives actual notice of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney.

If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the following (each to act alone and successively, in the order named) as successor(s) to that agent: . Signed this day of , . (your signature) State of County of This document was acknowledged before me on (date) by (name of principal). Powers of Attorney u 39 EXHIBIT 2.5 (continued) (signature of notarial officer) (seal, if any, of notary) (printed name) My commission expires:

THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT. MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT 9 I, (insert your name) appoint: Name:

Address: Phone: as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This medical power of attorney takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.

LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS: DESIGNATION OF ALTERNATE AGENT.

(You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.) If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:

9http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.166.htm#166.164 40 u Chapter 2. Advance Directives EXHIBIT 2.5 (continued) A. First Alternate Agent Name:

Address: Phone: B. Second Alternate Agent (name and address lines) The original of this document is kept at: The following individuals or institutions have signed copies: Name: Address: DURATION.

I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself. (IF APPLICABLE) This power of attorney ends on the following date: PRIOR DESIGNATIONS REVOKED.

I revoke any prior medical power of attorney.

ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.

I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the dis- closure statement. (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.) I sign my name to this medical power of attorney on day of (month, year) at (City and State) (Signature) (Print Name) STATEMENT OF FIRST WITNESS. Powers of Attorney u 41 EXHIBIT 2.5 (continued) Effective Dates Although outsiders (such as banks) may be reluctant to act on a springing power of attorney if they are not certain whether the power has ‘‘sprung’’ into effect, some clients are reluctant to sign a power of attorney for property that is im- mediately effective because they fear giving up control. The concern does not normally arise with respect to health care POAs because a springing power is generally triggered by a determination by the doctor who will direct care under the POA. A common resolution of this concern, with respect to property POAs, is to have the client sign a power of attorney, effective upon signing, but not give the agent possession of the document until it is needed. Having an agent for property while competent can have advantages. For example, a principal planning I am not the person appointed as agent by this document. I am not related to the principal by blood or marriage. I would not be entitled to any portion of the principal’s estate on the principal’s death. I am not the attending physician of the principal or an employee of the attending physician. I have no claim against any portion of the principal’s estate on the principal’s death. Furthermore, if I am an employee of a health care facility in which the principal is a patient, I am not involved in providing direct patient care to the principal and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility. Signature:

Print Name: Date: Address:

SIGNATURE OF SECOND WITNESS.

Signature:

Print Name: Date: Address: 42 u Chapter 2. Advance Directives EXHIBIT 2.5 (continued) extended travel can instruct her agent to deposit checks and pay her bills during her absence. Even if the agent has the document, the principal retains authority to direct the agent and to revoke the power as long as the principal is competent. Re- member: A durable power continues in effect after the principal becomes in- competent. The parties are in a fiduciary relationship and the agent has legal obligations to the principal, including the obligation to obey the lawful instructions of a competent principal. When a competent principal revokes a power of attorney, it is essential that the agent and all third parties be notified immediately, in writing. The revocation may have to comply with statutory formalities, such as notarization or witnessing, and should be delivered personally or by certified mail, with a receipt request.

Third parties can be made more comfortable in dealing with agents if the power of attorney specifically indicates how they will be notified of revocation. In some states, principals induce third parties to act on powers of attorney by declaring that revocation will be recorded. All powers of attorney terminate automatically upon the death of the prin- cipal, so third parties often require the agent to affirm that the principal is alive before honoring the power. Third parties are also reluctant to honor an ‘‘old’’ document, so the client may want to re-execute his directives every few years, even if his needs or wishes do not change. State law may also automatically terminate the agency of a spouse in the event of a divorce. Choosing an Agent The nature of an agency relationship, requiring trust and disclosure, makes it especially important that the client choose the right people. Unlike a guardian, an agent normally operates without court supervision or a surety. The client should choose a primary agent and at least one backup or standby agent. Sometimes clients may want to appoint multiple primary agents to avoid ‘‘hurt feelings,’’ but this should be avoided unless the client is willing to give detailed instructions for resolving conflict. Having multiple agents can also mean that multiple approvals are required for any action — resulting in great inconvenience. Considerations in choosing an agent include: . Agent’s willingness and ability to make difficult decisions. . Agent’s availability (time and location). . Agent’s understanding of client’s goals and wishes and ability to com- municate to family members and health care providers who may oppose those wishes. . Agent’s eligibility under state law (age, competency, involvement in patient’s medical care, relationship, financial interest). While it is possible to obtain the services of a professional to act as agent, it can be expensive, and such agents will generally insist on use of their own documents, which contain powers they are comfortable with and disclaimers to their benefit. Fiduciary Relationship Relationship imposing legalduties of trust anddisclosure Powers of Attorney u 43 Powers Given the Agent A client considering a power of attorney for health care must consider whether she wants: . To give strict instructions or give her agent flexibility to make decisions based on circumstances. . To specify a particular type of care environment, such as hospice care. . To authorize the agent to change doctors, care facilities, etc. . To allow or refuse life-sustaining treatments of various types, such as artificial nutrition or hydration. . To continue treatment in particular circumstances (for example, a per- manent vegetative state). . To be an organ donor, participate in medical research, or donate her body to science. Ti p The ABA has links to state-specific advance directives for health care: http:// new.abanet.org/aging/Pages/default.aspx . A client considering a power of attorney for property must consider whether he wants to give his agent various powers. Remember, any of these powers can be eliminated or restricted. For example, the principal might want to limit the au- thority to make gifts to gifts of $10,000 per year to each of his children. The principal should consider whether he wants the agent to be able to: . Make gifts, which can be an important part of estate planning for gift tax purposes and an extremely important part of Medicaid planning (dis- cussed in Chapters 7 and 8). . Manage and/or sell real estate — this may require that the power be recorded. . Manage, buy, or sell personal property .6 . Deal with banks, investment brokers, and other financial institutions. . Deal with government agencies. . Make loans or provide for the support of another. . File tax returns. . Pursue and settle claims. . Change insurance designations. 6Property is categorized as real (land and buildings), personal — also called chattel (moveable items), and intangible (financial instruments, patent rights, etc.). Personal Property Physical, moveable items, also known as chattel 44 u Chapter 2. Advance Directives . Hire and fire — this can include hiring a family member as a caregiver, which can be an important step in Medicaid planning. . Operate the client’s business. . Create, amend, or revoke a trust. . Delegate to another. . Compensate herself. Of course, every client has unique circumstances that must be considered in deciding which powers to grant and which to withhold. Drafting Most attorneys prefer to draft their clients’ powers of attorneys. A statutory or other form specific to your state is a good starting point because it will generally comply with state law concerning formalities addressing witnessing and notari- zation, but you should never use a form without carefully considering whether it meets the client’s needs and then modifying it as necessary. State laws make different assumptions about the powers of an agent, in the absence of a statement to the contrary, and it is important to draft documents with a clear understanding of those assumptions. Pay particular attention to formalities required by state law if the power is to be recorded; for example, if the power can be used to buy and sell real estate. The power of attorney must include clear language about its effective dates, whether it is a durable power, and how it can be revoked. A power may include a release of liability to encourage third parties to be willing to deal with the agent.

Some powers include a section for the agent to sign, accepting the delegation, or for the principal to acknowledge the agent’s signature. Some include an affidavit, which the agent must sign and have notarized in order to act. The agent must affirm that the principal is alive, that the attached power of attorney is a true copy, that the agent has no knowledge of revocation or termination of the power, and that the power of attorney is in full force and effect. Many banks and financial institutions are willing to act only on their own ‘‘in-house’’ forms, so the paralegal must first determine where the client has accounts, contact those institutions, and obtain required forms to be executed simultaneously with the power drafted by the attorney. In addition, some gov- ernmental agencies are not willing to accept powers of attorney that may be valid under the laws of the particular state in which they were executed. Always de- termine, in advance, what is required: . For information about using a power of attorney before the Internal Revenue Service, see http://www.irs.gov/publications/p947/ar02.html . . For information about dealing with Social Security issues on behalf of another, see http://www.socialsecurity.gov/phila/PDF/nh-current.pdf and http://www.socialsecurity.gov/pubs/10076.html . . To determine whether your state Medicaid agency requires a particular form, see http://www.nasmd.org/links/state_medicaid_links.asp . . To download the Medicare form for permission to access health care information, see http://www.medicare.gov/MedicareOnlineForms . Powers of Attorney u 45 . To access information about your state department of revenue, see http:// www.aicpa.org/Research/ExternalLinks/Pages/TaxesStatesDepartmentso- fRevenue.aspx . After the supervising attorney has approved a final draft, prepare multiple copies of each document for execution. Many parties dealing with an agent (for example, the client’s stockbroker) insist on keeping an original. Arrange for witnesses and a notary public, as required by state law. Have the client initial each page and any alterations. Agent Obligations The law office representing the principal must be very cautious in dealing with the agent, to avoid a possible conflict of interest. If the agent contacts the firm with respect to the power of attorney, the firm should remind the agent that privilege does not apply and may even ask the agent to sign a disclaimer. Example A law firm represents the principal, but has also represented the agent in a number of unrelated legal matters. During a routine visit by the principal and agent, in connection with the sale of some property, the paralegal becomes suspicious that the agent may have used some of the principal’s money to pay his own debts and that the principal seems afraid of the agent. The paralegal thinks the agent might have even physically abused the principal. What can the paralegal do?

To limit contact with the agent, a firm may wish to refer the agent to outside educational materials, such as those provided by the Colorado Bar Association:

http://www.cobar.org/index.cfm/ID/21280. Generally, the agent must be told to:

. Read the documents. . Understand the limits on her power (for example, that she cannot make loans). . Keep careful records and never commingle the principal’s money and accounts with her own. . Make her role clear by signing, for example, ‘‘Michelle Obama, as at- torney-in-fact for Barack Obama.’’ . Communicate regularly with the principal. . Be represented by independent counsel, who can address matters such as whether state law requires the agent to follow the principal’s wishes and state fiduciary standards — for example, can the agent do what is best for the family if it is not what the principal might want or what might be best for the principal? This is particularly important in situations involving large amounts of property or money or complicated family situations. Commingle To combine funds or properties 46 u Chapter 2. Advance Directives Step-by-Step Guidelines 1. Advise the client about options available and decisions that must be made; have the client consult family, trusted friends, and health care professionals. Find out whether the client has existing directives and/ or might need documents effective in other states. 2. Determine which financial institutions, government agencies, and health care institutions the client deals with; find out what those institutions require and obtain needed forms. 3. Based on the client’s wishes, the attorney will determine which advance directives are best. 4. Draft documents, carefully checking for required formalities, incon- sistencies between documents, and consistency with client wishes. 5. After the attorney reviews and approves the documents, make multiple copies and arrange for execution with necessary witnesses and a notary present. 6. After execution of the documents, record if required, provide copies to institutions (hospital, doctor, bank, broker) as needed, and ensure that the firm has a duplicate original of each, stored in a safe place. 7. Determine whether the agent needs to be educated about his duties, how to use the power of attorney, and required accounting. Assignments 1. Visit the Living Will Registry ( http://www.uslivingwillregistry.com) and determine:

a. Which states have their own registries?

b. Does the service cover organ donations?

c. Does the client/patient have to re-register periodically?

d. Does a care provider have to be registered with the service to obtain client information? 2. Find your state statute concerning DNRs and write a short summary.

3. Critical Thinking: Compare the two Texas POA forms in Exhibit 2.5: a. Identify the language in each that makes it ‘‘durable.’’ b. Can you imagine a situation in which a client would not want the power to be durable? c. Why is the witness provision on the health POA so specific about who can witness? d. Why is the property POA so specific, listing specific tasks that the agent might perform, while the health POA is more concerned with identifying the people involved and, instead of specifying what the agent might do, allows the principal to specify what the agent Powers of Attorney u 47 cannot do? Why might it be a good idea for the principal to be very specific about her wishes? 4. Ruth Zia is an intelligent 76-year-old woman in good health. Ruth is a widow and would like to designate her daughter, Miranda Mboya, to handle her medical and financial affairs in the event of disability. Ruth trusts Miranda totally. She also trusts her other daughter, Janna Andrusz, age 43, but feels that Janna might not be as emotionally able to handle the responsibility, particularly decisions that would concern Janna’s own child, Bryant. Bryant is an irresponsible alcoholic and Ruth does not want any of her money used to enable his behavior. She has written a will that addresses the situation. Ruth is wealthy enough to worry about estate taxes, so she has had the habit of giving each of her daughters $10,000 as a gift each year, but she has given Janna her gift by paying $10,000 toward Janna’s mortgage, to prevent Janna from giving Bryant cash. An issue of concern to Ruth is that Miranda works for an international charity and spends about half of her time in Africa; she has a home there and is married to a citizen of the country in which she has a home. Miranda is 49 years old and has no children. Ruth has only one other close relative — her brother, Mathew. Mat is 81 and in poor physical health, but mentally alert. Ruth would trust Mat to make her financial decisions, but she would not want either Mat or Janna to make health decisions. She feels that they are ‘‘soft-hearted’’ and would try to prolong her life at all costs. Ruth is adamant that she would not want artificial nutrition or hydration and does not want to be kept alive in a vegetative state. Unless she has a reasonable chance of recovery to a good quality of life, Ruth wants medical care to be limited to pain control.

Working with a classmate, determine which advance directives would be best for Ruth. Draft those documents in a form that meets your state’s requirements. If you need additional factual information, your instructor may supply it.

5. Critical/Ethical Thinking: a. The client executed a power of attorney for health care but did not execute a power of attorney for property. She is now incompetent, and her daughter, her attorney-in-fact under the POA, wants to place the client in a nursing home. Does the POA authorize the daughter to sign the nursing home contract, or is that a matter of property? See Owens v. Nat’l Health Corp. , 263 S.W.3d 876 (Tenn., 2007); cert. den. 129 S. Ct. 59, 172 L. Ed. 2d (2008). b. An agent may act on behalf of the principal, but what if the agent does not act? Suppose the attorney-in-fact for an incompetent person fails to file a lawsuit within the limitations period. Is the claim barred? See Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chatta- nooga Med. Investors, 221 S.W.3d 506 (Tenn. 2007). c. Suppose that the attorney-in-fact retains an attorney to assist in matters relating to the POA. Could this possibly create an attorney- 48 u Chapter 2. Advance Directives client relationship between the lawyer and the person who created the POA (who may be incompetent)? See Estate of Keatinge v. Biddle, 789 A.2d 1271 (Me., 2002). Review Questions 1. What formalities does your state require for a living will? What are the obligations of a medical professional who does not want to honor the directive? Is the use of a living will limited to specific medical situa- tions? 2. Does your state have a default surrogate decision-making law?

3. What formalities does your state require for execution of a power of attorney? 4. Discuss the advantages and disadvantages of a springing power of at- torney as opposed to a power effective immediately. 5. Why might a health care proxy or a power of attorney be a better option than a living will? 6. Why might a client be better served by a power of attorney rather than simply designating a person to act as guardian in the event of inca- pacity? 7. What can be done to make third parties, such as banks, more likely to honor a client’s power of attorney? 8. Read the summary of the Aradon case included in Exhibit 2.3. Why do you think a doctor might not want to tell a patient the ‘‘hard truth’’?

Can you think of circumstances in which the family might feel the doctor caused them a loss by giving a bad prognosis? Do you think that patients ever know the truth, but are not candid with their loved ones?

Do you think the court’s decision addresses these situations? Do you think a ‘‘bright line’’ can be drawn to describe a doctor’s obligations in such a situation? Review Questions u 49 ACROSS 1. Also called a limited POA 4. Appoints an agent 9. Agent will need duplicate of POA 10. Broad authority to make decisions 12. Some states have surrogate decision-making laws 13. Initials, federal law concerning advance directives 14. Illness likely to result in death 20. Required if POA will be used in connection with real estate 21. Financial instruments are property 23. To mix accounts 24. Nature of principal-agent relationship 50 u Chapter 2. Advance Directives DOWN 2. Another term for personal property 3. will, describes patient’s wishes with respect to care 5. property, land and buildings 6. Can revoke agency while competent 7. Corporate or professional agent requires 8. Health care , aka power of attorney 11. Acts on behalf of another 15. POA, survives incompetence 16. giving, organ donation 17. POA effective in future 18. POA that delegates all possible authority 19. Required in some states when advance directive is executed 22. Always terminates POA Crossword Puzzle u 51 3 uuu Guardianship/Conservatorship uuu Guardianship Defined Law Governing Appointment Types of Guardianship Preliminary Concerns Jurisdiction and Venue Priorities for Appointment Petition Due Process Protections Determination of Competency Obligations of Guardian Accounting Exercise of Substituted Judgment Objectives When you complete this chapter, you will: . Know the options available for various types of guardianships and con- servatorships. . Identify the due process concerns relevant to guardianship. 53 . Know the process for appointment of a guardian in your state and your state’s rules concerning jurisdiction, priority of appointment, duties of a guardian, and court supervision. . Draft a petition for guardianship. Guardianship Defined When a client’s needs cannot be met by means of an advance directive or trust, either because an outside party refuses to act on the authority of the power of attorney or because the client failed to execute advance directives while compe- tent, guardianship or conservatorship may be the only means of protecting the client. Guardianship has serious legal implications and is not readily available in all circumstances. Contrary to what some believe, a relative cannot readily ‘‘take over’’ when a senior family member begins acting in a way that ‘‘raises red flags.’’ In many states guardianship refers to the judicial appointment of a guardian to be a legal representative, responsible for the physical well-being and/or fi- nancial matters of an incompetent individual, the ward, while conservatorship refers to management of property owned by a conservatee. In a few places, guardianship is used to refer to an involuntary process, while conservatorship refers to an appointment not contested by the ward. Some people use the terms interchangeably, but this book uses the term conservatorship to refer to man- agement of property only. It is important to know how the terms are used in your area; Louisiana law uses the term interdiction . Because either type of appointment may strip a person of legal rights, it should not be sought without consideration of alternatives, and courts do not grant it lightly. A guardianship is available only if there is an adjudication of incapacity, generally after it is too late to establish powers of attorney or trusts. A guardianship may be necessary even if the individual has executed advance directives, but outsiders refuse to honor those directives without a court order.

Proceedings are costly, emotionally difficult, and time-consuming. Contrary to popular belief, close relatives cannot easily obtain a guardianship or ‘‘put away’’ an older relative.

Law Governing Appointment The process of obtaining a guardianship is a matter of state law. Those laws include different rules about jurisdiction, transfer, and other matters, which can lead to conflict. Because of the potential for conflict, the Uniform Law Com- mission has published, and about 20 states have adopted, the Uniform Guard- ianship and Protective Proceedings Act ( UGPPA ). The American Bar Association Commission on Law and Aging ( http://new.abanet.org/aging/Pages/ guardianshipjurisdiction.aspx ) promotes adoption of uniform law in this field. To determine whether UGPPA has been enacted in your state, visit http://www. nccusl.org/Update/DesktopDefault.aspx?tabindex=2&tabid=60 . If your state has Adjudication Judicial review anddetermination UGPPA Uniform Guardianship andProtective Proceedings Act 54 u Chapter 3. Guardianship/Conservatorship not adopted the uniform law, you may be able to find your state law by visiting http://new.abanet.org/aging/Pages/StateLawCharts.aspx , by using a search en- gine such as Google to search ‘‘state name Guardianship law,’’ or by starting at http://www.law.cornell.edu/statutes.html to navigate to your state code. Types of Guardianship Courts prefer to use the least restrictive option that will adequately protect the alleged incompetent person (AIP) . Some courts describe the AIP as the ‘‘in- dividual at risk,’’ the conservatee, or the ward; in guardianship proceedings the AIP is sometimes called the respondent . This chapter will generally refer to the ‘‘individual.’’ Options available under state law may include: . Guardian at Litem: a guardian appointed by the court to protect the individual’s rights during litigation. . Co-Guardians : guardians acting at the same time. They may serve sep- arate functions, such as a guardian of the person (responsible for the physical well-being of the ward) and a conservator of the estate (re- sponsible for property). If they serve the same function, consider whether one can act independently of the other(s). . Emergency Guardian (sometimes called a special medical guardian ): a guardian typically appointed to consent to medical treatment for the in- dividual. This is a temporary appointment. . Limited or Partial Guardianship: a guardianship that covers specific functions (less than plenary guardianship). . Plenary Guardianship: a guardianship that covers all matters. . Stand-by Guardian: a guardian who is not currently authorized to act; typically named by a spouse or parent currently acting as guardian, to act if current guardian does not. . Successor Guardian: after adjudication an individual without capacity cannot be left without a guardian — a successor guardian will act if guardian cannot or does not act. . Temporary Guardianship: guardianship that may be available in emer- gency situations, without a full hearing — for example, if the individual needs immediate medical decisions or is otherwise at risk. Preliminary Concerns Jurisdiction and Venue Jurisdiction refers to the power of a court to make an enforceable ruling in a case. Once the court system with jurisdiction is identified, venue can be deter- mined to identify the proper court within that system. Many states will exercise jurisdiction in a guardianship case if the disabled individual is domiciled or is physically present in that state. Most states will exercise jurisdiction to appoint a Alleged Incompetent Person (AIP) Person for whom guardianship is proposed Respondent Person being sued orresponding to law suit Co-Guardians Guardians acting at the same time Guardian of the Person Person responsible for the physical well-being of theward Conservator of the Estate Person responsible for property Jurisdiction Power of court to hear a particular case Venue Location of trial withinproper court system Domiciled Where a person lives Preliminary Concerns u 55 conservator if the individual is domiciled or has property in the state. Conflicts can arise if the individual is physically located in a state other than his domi- cile — or if there is uncertainty about domicile, perhaps because the individual owns property in more than one state. The UGPPA’s objective is to assure that an appointment is made in only one state, except in cases of emergency, or if multiple appointments are required because the individual owns property located in different states. The act provides that the individual’s ‘‘home state’’ has primary jurisdiction and defines ‘‘home state’’ as the state in which the individual was physically present, including periods of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or appointment of a guardian. If the individual was not physically present in a single state for the six months imme- diately preceding the filing of the petition, the home state is the place where the individual was last physically present for at least six months, as long as that presence ended within the six months prior to the filing of the petition. The home state’s ability to act continues for up to six months following the indi- vidual’s physical relocation to another state. A ‘‘significant connection state’’ refers to the state in which the individual has a significant connection other than physical presence, and in which substantial evidence concerning the individual is available. An individual may have several significant connection states, but only one home state. Factors that may be considered in determining significant connection include: . Location of family and others required to be notified of the proceeding. . Length of time the individual was at any time physically present in the state and duration of absences. . Location of the individual’s property. . Extent to which the individual has other ties to the state such as voting registration, state or local tax returns, vehicle registration, driver’s license, social relationships, and receipt of services. The UGPPA provides that a significant connection state can make an appointment or issue another type of protective order under specific circum- stances, if there is no home state or if the home state has failed to act. Priorities for Appointment If an individual has made an advance designation of a guardian, courts will generally honor the person’s wishes unless the appointment is not in the best interests of the individual (note the second section of the Illinois statute in Exhibit 3.1). If there is no advance directive or if the designated guardian cannot serve, the court will look to the statutory qualifications for appointment and priorities for appointment. Note the Illinois statute’s qualifications. Find your state’s qualifications and priorities and compare them. Does your state have similar language concerning people convicted of felonies? Is there a similar prohibition on guardianship by an agency providing residential services? What is the purpose of such a prohibition? The UGPPA lists the priorities as follows: 56 u Chapter 3. Guardianship/Conservatorship EXHIBIT 3.1 Illinois Statute 755 ILCS 5/11a-5. Who may act as guardian (a) A person is qualified to act as guardian of the person and as guardian of the estate of a disabled person if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the disabled person and that the proposed guardian: (1) has attained the age of 18 years; (2) is a resident of the United States; (3) is not of unsound mind; (4) is not an adjudged disabled person as defined in this Act; and (5) has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the disabled person’s best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian’s rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to an elderly or disabled person, including a felony sexual offense.

(b) Any public agency, or not-for-profit corporation found capable by the court of providing an active and suitable program of guardianship for the disabled person, taking into consideration the nature of such person’s disability and the nature of such organization’s services, may be appointed guardian of the person or of the estate, or both, of the disabled person. The court shall not appoint as guardian an agency which is directly providing residential services to the ward. One person or agency may be appointed guardian of the person and another person or agency appointed guardian of the estate. (c) Any corporation qualified to accept and execute trusts in this State may be appointed guardian of the estate of a disabled person.

Sec. 11a-6. Designation of Guardian. A person, while of sound mind and memory, may designate in writing a person, corporation or public agency qualified to act under Section 11a-5 [755 ILCS 5/11a-5], to be appointed as guardian or as successor guardian of his person or of his estate or both, in the event he is adjudged to be a disabled person. The designation may be proved by any competent evidence, but if it is executed and attested in the same manner as a will, it shall have prima facie validity. If the court finds that the appointment of the one designated will serve the best interests and welfare of the ward, it shall make the appointment in accordance with the designation. The selection of the guardian shall be in the discretion of the court whether or not a designation is made.

Preliminary Concerns u 57 (1) A guardian, other than a temporary or emergency guardian, currently acting for the individual; (2) A person nominated as guardian by the ward, if at the time of the nomination, the ward had sufficient capacity to express a preference; (3) An agent appointed a durable power of attorney for health care; (4) Spouse or a person nominated by will or other signed writing of a deceased spouse [an example of a stand-by guardian]; (5) An adult child; (6) A parent, or an individual nominated by will or other signed writing of a deceased parent; and (7) An adult with whom the ward has resided for more than six months before the filing of the petition. (b) With respect to persons having equal priority, the court shall select the one it considers best qualified. The court, acting in the best interest of the ward, may decline to appoint a person having priority and appoint a person having a lower priority or no priority. (c) An owner, operator, or employee of a long-term-care institution at which the respondent is receiving care may not be appointed as guardian unless related to the respondent by blood, marriage, or adoption.

As you can see, a guardian may be a family member or an unrelated indi- vidual. Some states authorize corporations to act as guardians, as shown in the Illinois statute. A guardian may be compensated or may be a volunteer. Many states and counties have public guardians. If there is no such office, the judge may appoint an attorney or other individual. If the ward has assets, those assets may be used to compensate a public guardian; if the ward is indigent , the public absorbs the cost. A state may allow a foreign guardian , but appointment of a foreign guardian may result in inconvenience. At least one state, Florida, requires training for nonprofessional guardians and has an exam. The National Guardianship Association ( http://www.guardianship. org ) provides resources for guardians, including a center for guardianship certifi- cation. Certification is a means by which a guardian can establish to a court that she is qualified for appointment and is familiar with and agrees to abide by guard- ianship laws and ethical standards. The Association is open to both professional and family guardians. Many states and bar associations have additional information online because guardianships are often sought by family members, acting pro se . Find out what is available for your state by using a search engine, such as Google, and entering the name of your state and the word guardianship . Petition The process begins with the filing of a petition in compliance with statutory requirements. Examine the Colorado statute in Exhibit 3.2 and the sample pe- tition in Exhibit 3.3 to see what is typically required. Take particular notice of the reference to a physician’s report; this is required in some states. In other states, the court initially orders an evaluation (described below); evidence about the AIP’s condition and whether a guardianship is the least restrictive alternative are considered at a subsequent hearing. Examine the sample California Declaration of Capacity, to be completed by the health care provider, at http://www.courtinfo.ca.gov/forms/fillable/gc335.pdf . Indigent Without funds Foreign Guardian A guardian from another state or country Pro Se Acting on one’s own behalf 58 u Chapter 3. Guardianship/Conservatorship EXHIBIT 3.2 Colorado Statute The Colorado statute is fairly typical in describing the required contents of a petition.

15-14-304. Judicial appointment of guardian petition. (1) An individual or a person interested in the individual’s welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual. (2) The petition must set forth the petitioner’s name, residence, current address if different, relationship to the respondent, and interest in the appointment and, to the extent known, state or contain the following with respect to the respondent and the relief requested: (a) The respondent’s name, age, principal residence, current street address, and, if different, the address of the dwelling in which it is proposed that the respondent will reside if the appointment is made; (b) (I) The name and address of the respondent’s: (A) Spouse, or if the respondent has none, an adult with whom the respondent has resided for more than six months within one year before the filing of the petition; and (B) Adult children and parents; or (II) If the respondent has neither spouse, adult child, nor parent, at least one of the adults nearest in kinship to the respondent who can be found with reasonable efforts; (c) The name and address of each person responsible for care or custody of the respondent, including the respondent’s treating physician; (d) The name and address of each legal representative of the respondent; (e) The name and address of each person nominated as guardian by the respondent; (f) The name and address of each proposed guardian and the reason why the proposed guardian should be selected; (g) The reason why guardianship is necessary, including a brief description of the nature and extent of the respondent’s alleged incapacity; (h) If an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian; and (i) A general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts. Preliminary Concerns u 59 EXHIBIT 3.3 Sample of a Petition Compliant with Illinois Law IN THE COURT FOR COUNTY, STATE insert correct title for court In the Matter of the Guardianship of: ) ) Ward name , ) No. ) docket number, will be assigned by clerk Alleged Disabled Person. ) when petition is filed PETITION FOR APPOINTMENT OF A GUARDIAN Petitioner, name & address; check state law, need petitioner be a resident? , alleges as follows:

1. Petitioner, is relationship to the ward . 2. The alleged disabled person, , was born and his or her current residence is address . 3. Ward name currently has no guardian and has no agent under the cite relevant state law; if AIP has an advance directive, describe . 4. The names and addresses of the nearest relatives of ward name are, in statutory order (cite your state’s priority statute ): 5. Ward name’s property, with the estimated value of $ .List of real and significant personal property 6. Current and anticipated receipts consist of: identify ward’s income 7. A plenary guardianship is necessary because ward has been diagnosed by physician name and address as suffering from diagnosis more fully stated in the report of said physician, which has left ward without sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his or her personal and/or financial affairs . 8. The physician’s report has been submitted with this Petition in a sealed en- velope to the Clerk of the Court consistent with section XX of the name of state law Act and is incorporated herein by reference and made a part hereof. 9. A limited guardianship will not provide sufficient protection for ward name 10. The proposed guardian, , is qualified to be appointed the guardian of the person or estate of ward name in that petitioner name is not of unsound mind, is not an adjudged disabled person, has not been convicted of a felony — check state law and meets all other requirements of §xx of the Act. 60 u Chapter 3. Guardianship/Conservatorship The petitioner is not always the proposed guardian. For example, a con- cerned friend or neighbor who is unqualified or unable to act as guardian might want to get help. A common situation involves an older person who is taken to the hospital and is ready for discharge, but is unable to care for himself and unable to consent to or obtain benefits to pay for residential care. If no friend or relative is available, the hospital might petition for appointment of a temporary guardian to serve those functions. The paralegal must gather information and documents before preparing a petition: . Information about family, for notice to interested persons. . Information about the individual’s income and assets. . Any advance directives, wills, or trusts executed by the individual. . Information about the individual’s living situation, abilities, and health. . Information about how a guardianship would benefit the individual — some states require this information or a plan as part of the petition. WHEREFORE, Petitioner, prays that an order be entered adjudicating ward name to be a disabled adult within the meaning of the Probate Act and appointing and naming petitioner name as plenary guardian of the person or estate of ward name. Dated this day of ,20 . Petitioner VERIFICATION BY CERTIFICATION , respectfully states that is the Petitioner herein, and that has read the foregoing Petition for Appointment of Guardian and under penalties as provided by law pursuant to Section XX of the Code ofXX, the undersigned certifies that the statements set forth in this petition are true and correct except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that believes that same to be true. Petitioner Preliminary Concerns u 61 EXHIBIT 3.3 (continued) Critical Thinking: Who Is Going to Pay for This? Petitioners and guardians, particularly those who are not related to the ward, do not have to spend their own money or work as volunteers. Most states have a statute similar to the Florida law shown in Exhibit 3.4. Note the requirement for an itemized statement and review by the court. Why?

Note also the reference to fees for work done by legal assistants. How does that serve the same purpose as the itemized statement? Due Process Protections In the past, guardianship proceedings were often seen as non-adversarial. Courts focused on the state’s inherent parens patriae power to protect individuals and did not adhere to procedures employed in adversarial changes. There was often an assumption that the petitioner and guardian were acting and would continue to act in the best interest of the individual. Guardianship proceedings were often uncontested because the individual did not have the ability to object. That began to change in the 1970s, because of media attention, congressional hearings, and studies that revealed abuse. Most statutes now include standards and definitions designed to prevent such abuse. What society thinks is in the best interest of an individual may not be what that person wants. An older person may want to stay in her own home, even though her abilities to care for herself and to manage her money are severely limited by forgetfulness and physical weakness. Her children and her doctor may want her to move to a care facility. Should the court rule in favor of protection or of self-determination ? Might there be alternatives? Because of the due process implications of confining a person to an institution or using medications to restrain an individual, California, for example, has different procedures for ‘‘probate’’ conservatorships and mental health conservatorships. Notice is an essential component of due process, and the UGPPA requires that the AIP be given written notice at least 14 days before the hearing. The notice may be delivered in a number of ways. Other interested parties are also entitled to notice. Examine the Indiana statute and form of notice (Exhibit 3.5), which are typical. How does your state compare to others with respect to notice requirements? See http://www.abanet.org/aging/legislativeupdates/pdfs/Chart_Notice_6-08.pdf.

Most courts prefer that the AIP appear at the hearing; some courts appoint a guardian ad litem, a visitor, investigator, or evaluators (courts use different terms, but the function is the same) to investigate and report on the situation, regardless Parens Patriae State’s power to protect individuals Self-determination Right to make one’s owndecisions Interested Parties Persons entitled to notice ofguardianship proceedings 62 u Chapter 3. Guardianship/Conservatorship EXHIBIT 3.4 Florida Fee Statute Fla. Stat. §744.108. Guardians and attorneys fees and expenses (1) A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. (2) When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria: (a) The time and labor required; (b) The novelty and difficulty of the questions involved and the skill required to perform the services properly; (c) The likelihood that the acceptance of the particular employment will preclude other employment of the person; (d) The fee customarily charged in the locality for similar services; (e) The nature and value of the incapacitated person’s property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person; (f) The results obtained; (g) The time limits imposed by the circumstances; (h) The nature and length of the relationship with the incapacitated person; and (i) The experience, reputation, diligence, and ability of the person performing the service.

(3) In awarding fees to attorney guardians, the court must clearly distinguish between fees and expenses for legal services and fees and expenses for guardian services and must have determined that no conflict of interest exists. (4) Fees for legal services may include customary and reasonable charges for work performed by legal assistants employed by and working under the direction of the attorney. (5) All petitions for guardian’s and attorney’s fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered. (6) A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated. (7) A petition for fees shall include the period covered and the total amount of all prior fees paid or costs awarded to the petitioner in the guardianship proceeding currently before the court. (8) When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including fees for the guardian’s attorney, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.

Due Process Protections u 63 EXHIBIT 3.5 Indiana Statute IC 29-3-6-1 Sec. 1. (a) When a petition for appointment of a guardian or for the issuance of a protective order is filed with the court, notice of the petition and the hearing on the petition shall be given by first class postage prepaid mail as follows: (1) If the petition is for the appointment of a successor guardian, notice shall be given unless the court, for good cause shown, orders that notice is not necessary. (2) If the petition is for the appointment of a temporary guardian, notice shall be given as required by IC 29-3-3-4(a). (3) If the subject of the petition is a minor, notice of the petition and the hearing on the petition shall be given to the following persons whose whereabouts can be determined upon reasonable inquiry: (A) The minor, if at least fourteen (14) years of age, unless the minor has signed the petition. (B) Any living parent of the minor, unless parental rights have been terminated by a court order. (C) Any person alleged to have had the principal care and custody of the minor during the sixty (60) days preceding the filing of the petition. (D) Any other person that the court directs.

(4) If it is alleged that the person is an incapacitated person, notice of the petition and the hearing on the petition shall be given to the following persons whose whereabouts can be determined upon reasonable inquiry: (A) The alleged incapacitated person, the alleged incapacitated person’s spouse, and the alleged incapacitated person’s adult children, or if none, the alleged incapacitated person’s parents. (B) Any person who is serving as a guardian for, or who has the care and custody of, the alleged incapacitated person. (C) In case no person other than the incapacitated person is notified under clause (A), at least one (1) of the persons most closely related by blood or marriage to the alleged incapacitated person. (D) Any person known to the petitioner to be serving as the alleged incapacitated person’s attorney-in-fact under a durable power of attorney. (E) Any other person that the court directs. Notice is not required under this subdivision if the person to be notified waives notice or appears at the hearing on the petition. (b) Whenever a petition (other than one for the appointment of a guardian or for the issuance of a protective order) is filed with the court, notice of the petition and the hearing on the petition shall be given to the following persons, unless they appear or waive notice: (1) The guardian.

(2) Any other persons that the court directs, including the following:

(A) Any department, bureau, agency, or political subdivision of the United States or of this state that makes or awards compensation, pension, insurance, or other allowance for the benefit of an alleged incapacitated person. 64 u Chapter 3. Guardianship/Conservatorship (B) Any department, bureau, agency, or political subdivision of this state that may be charged with the supervision, control, or custody of an alleged incapacitated person. IC 29-3-6-2 Sec. 2. A copy of the petition shall be attached to the notice, and the notice must be in substantially the following form:

NOTICE TO: (name and address of person receiving notice) On (date of hearing) at (time of hearing) in (place of hearing) at (city), Indiana, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person or minor). A copy of the petition requesting appointment of a guardian is attached to this notice. At the hearing the court will determine whether (name of alleged incapacitated person or minor) is an incapacitated person or minor under Indiana law. This proceeding may substantially affect the rights of (name of alleged incapacitated person or minor). If the court finds that (name of alleged incapacitated person or minor) is an incapacitated person or minor, the court at the hearing shall also consider whether (name of proposed guardian, if any) should be appointed as guardian of (name of alleged incapacitated person or minor). The court may, in its discretion, appoint some other qualified person as guardian. The court may also, in its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person or minor) to retain control over certain property and activities. The court may also determine whether a protective order should be entered on behalf of (name of alleged incapacitated person or minor). (Name of alleged incapacitated person) may attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not required. If (name of alleged incapacitated person) attends the hearing, opposes the petition, and is not represented by an attorney, the court may appoint an attorney to represent (name of alleged incapacitated person). The court may, where required, appoint a guardian ad litem to represent (name of alleged incapacitated person or minor) at the hearing. The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time. (signature of clerk of the court) EXHIBIT 3.5 (continued) Due Process Protections u 65 of whether the AIP appears. Some judges will even visit the AIP at home or in the hospital or care facility if the AIP is unable to attend the hearing or waives appearance. The AIP may want to contest the proceedings and to obtain or request appointment of her own attorney to advocate her position, because a guardian at litem is not bound by confidentiality and is required to look at the AIP’s best interests, which are not always the same as the AIP’s wishes. Although the law often refers to ‘‘least restrictive means,’’ which must be de- termined on a case-by-case basis, the practical realities may dictate the decision. For example, an individual may not have the ability to handle investments, checking accounts, credit cards, etc., but might be able to handle small cash transactions, such as going to the grocery store with $50. How might a court structure a conserva- torship? What would be the difficulties, from the conservator’s point of view, that might make the ‘‘least restrictive’’ arrangement unduly burdensome?

Determination of Competency The UGPPA defines ‘‘incapacitated’’ to mean that an individual is ‘‘unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assis- tance.’’ Note that the definition is functional — it focuses on the individual’s abilities — rather than status-oriented . Being old or having a physical or even a mental illness does not necessarily equate with lack of capacity. Some states use the term decisional incapacity to clarify that physical problems are not determi- native. Note also the word essential ; should an individual be considered inca- pacitated because, for example, her manner of dress and grooming is unacceptable to her family? Note also that the focus is on whether the individual has the ability to make competent decisions, not whether his decisions are ac- tually good decisions. People have the right to make ‘‘bad’’ decisions that dis- please their families. Some state definitions refer to the ‘‘necessity’’ of appointment. This is an acknowledgement of the goal of using the least re- strictive means of assisting the individual. States have their own definitions, and the burden is on the petitioner to prove, usually by ‘‘clear and convincing evidence,’’ that the AIP falls within the definition. All adults are presumed competent. A medical professional may not know the elements of the statutory definition and may be unaware of the need to address those elements. A diagnosis, even of a serious mental condition, such as dementia or use of psychotropic drugs , may not be enough. If the court is able to make required findings based on the evidence, it will issue an order, sometimes called letters of office , appointing a guardian. The order will typically include the duration of the guardianship, a description of the guardian’s authority, a provision concerning compensation of the guardian, and requirements for reporting. Depending on the circumstances, the court may require a surety bond . The record of proceedings on competency will be sealed to protect the privacy of the individual. Functional Focused on abilities Status-oriented Focused on diagnosis Least Restrictive Guardianship standard, designed to give protectedindividual greatest possibleautonomy Dementia Mental deterioration of physical origin Psychotropic Drugs Drugs that alter mentalfunction or emotions Required Findings Court’s conclusionsjustifying decision Letters of Office Order authorizing guardian to act Surety Bond Insurance to protect wardfrom financial loss due toguardian’s actions 66 u Chapter 3. Guardianship/Conservatorship Obligations of Guardian The obligations and authority of the guardian depend on the type of guardian- ship: guardianship of the person or conservatorship of property; plenary or lim- ited. The obligations also depend on state law. Guardianship is a fiduciary relationship, and, at the very least, the guardian is required to put the ward’s interests ahead of her own and investigate for possible abuse of the ward. For this reason, a person cannot be forced to act as a guardian against her will. In general, a guardian is not required to provide for a ward out of her own funds, to provide actual physical custody of the ward, to be liable for a ward’s actions, or to be liable for harm to a ward caused by a caregiver selected by the guardian. Accounting The court retains jurisdiction, and the guardian may be required to file periodic reports. For example, a conservator may be required to submit a financial plan, an inventory, and periodic accountings. The Florida statute, reproduced in Exhibit 3.6, is typical. A paralegal is often responsible for assisting the guardian in setting up a system to track income and expenses and in producing the annual report in compliance with statutory requirements. To see samples of guardianship annual accounting forms, use a search en- gine, such as Google, to search for ‘‘sample guardian accounting,’’ or visit http://www.courtinfo.ca.gov/programs/equalaccess/guard.htm. EXHIBIT 3.6 FLORIDA STATUTES CHAPTER XVIII, Domestic Relations 744.3678 Annual Accounting (1) Each guardian of the property must file an annual accounting with the court. (2) The annual accounting must include:

(a) A full and correct account of the receipts and disbursements of all of the ward’s property over which the guardian has control and a statement of the ward’s property on hand at the end of the accounting period. This paragraph does not apply to any property or any trust of which the ward is a beneficiary but which is not under the control or administration of the guardian. Obligations of Guardian u 67 A guardian of the person may be required to submit periodic reports on the ward’s physical, social, and emotional conditions, living arrangements, and professional services provided to the ward (such as medical care). The guardian may be required to obtain court permission for making certain changes. Of course, there are things that a guardian typically cannot do for the in- dividual, including consent to marriage or divorce, or casting a vote. Many states require court approval for major decisions, such as: (b) A copy of the annual or year-end statement of all of the ward’s cash accounts from each of the institutions where the cash is deposited.

(3) The guardian must obtain a receipt, canceled check, or other proof of payment for all expenditures and disbursements made on behalf of the ward. The guardian must preserve all evidence of payment, along with other substantiating papers, for a period of 3 years after his or her discharge. The receipts, proofs of payment, and substantiating papers need not be filed with the court but shall be made available for inspection and review at the time and place and before the persons as the court may order. (4) The guardian shall pay from the ward’s estate to the clerk of the circuit court a fee based upon the following graduated fee schedule, upon the filing of the annual financial return, for the auditing of the return: (a) For estates with a value of $25,000 or less the clerk of the court may charge a fee of up to $20. (b) For estates with a value of more than $25,000 up to and including $100,000 the clerk of the court may charge a fee of up to $85. (c) For estates with a value of more than $100,000 up to and including $500,000 the clerk of the court may charge a fee of up to $170. (d) For estates with a value in excess of $500,000 the clerk of the court may charge a fee of up to $250.

Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward’s estate. Any guardian unable to pay the auditing fee may petition the court for a waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver. (5) This section does not apply if the court determines that the ward receives income only from social security benefits and the guardian is the ward’s representative payee for the benefits 68 u Chapter 3. Guardianship/Conservatorship EXHIBIT 3.6 (continued) . Administering medications and other extremely restrictive medical mea- sures, such as confinement to a ward or shock therapy. . Changing housing arrangements or legal domicile. . Making gifts. . Releasing interests. . Establishing a trust. . Selling real estate. . Entering a contract on behalf of the ward. . Exercising rights under an insurance or employee benefits plan. Exercise of Substituted Judgment What standard is applied to the guardian’s exercise of substituted judgment ? Many states require that the guardian make decisions by conforming as closely as possible to what the ward, if competent, would have done or intended under the circumstances. The guardian must take into account her knowledge of the ward’s personal, philosophical, religious, and moral beliefs and values. In some cases, such as where the ward has serious dementia, it may be impossible to determine what the ward would have wanted under the circumstances and the guardian must use the ‘‘best interest’’ standard of decision making. This means that in reaching a decision, the guardian should act in the manner of a reasonably prudent person (or investor, if a conservatorship). In reaching a decision, the guardian should weigh the benefits, the possible risks and consequences, and the possible alternatives, and should then select the best option available. In making medical decisions, the guardian must adhere to the informed consent standard.

When appropriate, the guardian may also have to consider the ‘‘least restrictive’’ standard. Of course, the guardian’s choices are limited by financial concerns. For example, the individual’s income and public benefits may be inadequate to pay for the housing that would be ‘‘best’’ for the individual. Financial concerns are a major factor when a public guardian is required, as discussed in Exhibit 3.7. The National Guardianship Association has promulgated a model code of ethics ( http://www.guardianship.org/pdf/codeEthics.pdf ) that emphasizes the duties of loyalty and trust. The guardian must not make decisions based on his own best interests and must not withhold information. Guardianship can be limited to a specific time period, after which the court must determine whether to renew the appointment. Guardianship can be ter- minated if the ward regains competence, and, of course, guardianship terminates upon the death of the ward. In most states, a petition for termination of guardianship puts the burden of proof on the party claiming that the individual is still incapacitated. Any termination will normally require a final report to the court. Substituted Judgment Judgment exercised onbehalf of another guardian cannot or does not act Reasonably Prudent Standard for actions ofguardian Obligations of Guardian u 69 EXHIBIT 3.7 Dealing with Cuts in Funding Kimberly Murphy received her law degree from the University of Iowa College of Law. In addition to serving as Associate Director of the National Health Law and Policy Resource Center (NHLP), Ms. Murphy maintains a private law practice specializing in elder law, probate law, and health law. She is an active member of the Iowa State Bar Association and serves on the Guardianship/Conservatorship Committee of the Probate Section of the Iowa Bar Association. She also is a member of the Iowa Committee on Probate Procedure and Forms, which was established by the Iowa Supreme Court. Based on her demonstrated expertise regarding guardianships, Ms. Murphy has received national guardianship certi- fication from the National Guardianship Association, which establishes and promotes a nationally recognized standard of excellence in guardianship. The NHLP was founded in 1981. Its mission is to promote laws and public policies that foster and facilitate accessible, affordable, and quality health services and related services for all Americans, particularly vulnerable and disadvantaged populations. It furnishes a nonpartisan forum for informed dialogue, based on the best available data and information, between academics, practitioners, and public policy makers on important health law and policy issues. The NHLP Web site ( http://www.uiowa.edu/law-nhlp/about.shtml ) is a wealth of resources for those serving vulnerable clients. Ms. Murphy understands the need for such resources. From 2007 to 2009, she was Administrator of the Iowa Office of Substitute Decision Maker in the Iowa Department of Elder Affairs. The Office of Substitute Decision Maker was established to assure that Iowans had access to resources and information re- garding substitute decision making, to provide statewide education to individuals routinely addressing substitute decision-making issues, and to investigate and intervene in problematic guardianships and conservatorships. In her capacity as Administrator, she served as a member of the Iowa Substitute Decision Maker Task Force and Iowa Substitute Decision Maker Curriculum Committee, and she was responsible for developing a statewide curriculum on substitute decision makers and a statewide training program utilizing that curriculum. Unfortu- nately, many of the resources previously available under the state program have fallen victim to budget cuts common to all states. With respect to dealing with budget cuts and doing more for your clients with less from the government, Ms. Murphy says, ‘‘The economic crisis and corresponding budget cuts have made it difficult for clients to obtain traditional assistance from government programs. Many necessary programs have been cut and some elimi- nated. It is more important than ever to look for creative solutions when assisting clients. Look for nontraditional resources that exist outside of government. In Iowa, for example, the National Health Law and Policy Resource Center has dedicated itself to filling the gap of public education left by the elimination of the Office of Substitute Decision Maker. Other organizations and nonprofit associations that may be able to provide guidance include local law school clinics and legal aid organiza- tions, nonprofit entities dealing with disability or aging issues, and organizations dealing with specific and related causes, such as the Alzheimer’s Association.’’ 70 u Chapter 3. Guardianship/Conservatorship Assignments 1. Visit http://new.abanet.org/aging/Pages/guardianshipjurisdiction.aspx ; scroll to the resource that includes cases involving jurisdiction issues.

Find, read, and summarize a case from your jurisdiction. 2. Critical Thinking: Read the short Florida cases at the end of this chapter.

a. Why might the judge in the Fernandez case have not followed normal trial procedure? b. There is a reference in the Magill case to an award of fees to the guardian ad litem. Where will the money come from? c. In Magill , do you think that appointment of all three daughters as guardian was a good idea? What would the court have had to find in order to reject the declaration? 3. Find your state law requiring an accounting by a guardian. Your firm’s client, Ali Iqbal, has just been appointed as guardian for his father, Mohammed Iqbal. Write a letter, describing to Ali how he will be required to account for his father’s finances. Mr. Iqbal is a person of average intelligence, so do not write in ‘‘legalese.’’ 4. Use Google or a similar search engine to find samples of guardianship questionnaires. Using what you find as a starting point, put together an intake form to be used for questioning a client who wants to seek guardianship of an older relative. 5. Locate your state’s law pertaining to guardianship proceedings and determine:

a. What are the priorities for appointment?

b. Who is entitled to notice of a petition? How and when must that notice take place? c. Does the statute include a ‘‘least restrictive’’ or ‘‘least intrusive’’ standard? d. How does the statute define incapacity? How would a physician’s report address the requirements of the statute? e. What does the statute say about awards of costs and fees? Can the petitioner be reimbursed for seeking guardianship 6. Based on the statutory requirements and/or forms you find online, prepare a guardianship petition, to be filed in your local state trial court, for this situation. Adeline Andrews was born May 21, 1929. She is a widow and lives with her only child, daughter Darlene Hendry, at 350 River Bluff Road, in your town, your state. Darlene would like to be her mother’s legal guardian so that she can make medical decisions and deal with financial institutions. Adeline has no advance directives and has never had a guardian or conservator. Darlene is a competent adult, has never been convicted of a felony, and is also a widow. Adeline’s phy- sician, Elise Warski, MD, has provided a written report indicating that Adeline has dementia with Lewy bodies. She suffers tremors and other Obligations of Guardian u 71 physical manifestations. She is not able to understand her diagnosis or answer questions about her treatment preferences. She does not re- member where she has bank accounts, or where she lives. Her assets consist of $240,000 in savings and income of $1,800 per month. If you need additional information, your instructor can provide it. Review Questions 1. What protections does your state have in place for individuals who wish to challenge a guardianship petition identifying them as incapacitated? 2. What protections does your state have in place to prevent an appointed guardian from taking advantage of or neglecting responsibilities to a ward? 3. Does your state restrict the actions that may be taken by a guardian without court approval? 4. How do courts in your state determine competency?

5. Does your state or county have a public guardian?

6. What are the requirements for a petition for guardianship in your state? 72 u Chapter 3. Guardianship/Conservatorship FERNANDEZ V. FERNANDEZ 36 So. 3d 175 (Fla. App. 2010) This is an appeal of an order denying a verified petition to determine incapacity.

We remand for a new trial. Nancy Fernandez, the daughter, filed a verified petition to determine inca- pacity of her mother, Elsa Maria Fernandez. The court appointed an examining committee. Two members of the examining committee recommended a limited guardianship and the third member concluded that no guardianship was neces- sary. The matter came before the trial court for an evidentiary hearing. The mother and daughter were present and each was represented by counsel. Other witnesses were also present and testified. The trial court denied the petition and the daughter has appealed. The daughter contends that the trial court failed to follow proper trial procedure. We conclude that the daughter’s argument is well taken. We surmise that the trial court, acting from the best of motives, decided that the hearing would proceed more expeditiously if the trial court conducted the examination of witnesses instead of allowing counsel to do so. The trial court swore the witnesses and denied the daughter’s request to invoke the rule of exclusion of witnesses. The court called and questioned the witnesses, affording almost no opportunity for examination or cross-examination by the parties.

There were no opening or closing statements. Respectfully, this was not proper procedure. The Florida Probate Rules provide that in adversary proceedings, ‘‘the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern. . . . ’’ Fla. Prob. R. 5.025(d)(2). ‘‘The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.’’ §744.331(5)(a), Fla. Stat.

(2008). As this was an evidentiary hearing in a contested proceeding, the matter should have been tried as is customary in a bench trial. The parties should have been given an opportunity to make opening and closing statements. Each party should have been given an opportunity to present evidence, call and question witnesses, and cross-examine the other side’s witnesses. When the guardian ad litem gave her report, cross-examination by the parties should have been allowed. At the start of the hearing, the daughter invoked the rule of exclusion of witnesses. The trial court denied that request. The request should have been granted. The Evidence Code provides:

90.616 Exclusion of witnesses. (1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2). (2) A witness may not be excluded if the witness is:

(a) A party who is a natural person.

(b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative. Fernandez v. Fernandez Case u 73 (c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause. (d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial. §90.616, Fla. Stat. (2008) The parties, of course, were not subject to exclusion. Id . §90.616(2)(a). The other fact witnesses were all relatives of the parties. Because the daughter timely invoked the rule, the relatives should have been excluded. The daughter does not complain about the fact that the guardian ad litem was allowed to remain. For the stated reasons, we reverse the order now before us and remand for a new trial. We express no opinion on the merits of the petition. MAGILL V. DRESNER 2010 Fla. App. LEXIS 11268 (2010) The appellants, Marianne Magill Acuna and Marilyn Magill, appeal an order of the probate court appointing the appellee, Jack Dresner, as plenary guardian for their mother. They also appeal an order granting attorney’s fees to the attorney ad litem , appellee Hung V. Nguyen, and an order denying a motion for dis- qualification of the trial judge. We affirm both the order granting attorney’s fees to Nguyen and the order denying the motion for disqualification. However, because there was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian, we reverse the order appointing Dresner plenary guardian.

1. Concerning the appellants’ claim that the trial court erred when it awarded attorney’s fees to Nguyen, we find that the appellants lack standing to challenge the order. . . . The ward, Shirley Magill, has three daughters: the appellants, Marianne Magill Acuna and Marilyn Magill, and Maureen Tew. Maureen is married to the petitioner below, Jeffrey Tew. On June 23, 2006, Shirley executed a Declaration Naming Preneed Guardian, which stated in relevant part: If I am determined at any time to be incapacitated, as that term is defined in the Florida Guardianship Law as it now exists or may hereafter be amended, I declare that my three (3) children MARIANNE ACUNA, MARILYN MAGILL, AND MAUREEN TEW, together, or the survivor thereof, are to serve as guardian of my person and property, to exercise all delegable legal rights and powers and to perform all the tasks necessary to care for me and my property. If none of my children are able or willing to serve as Guardian of my person and property, for any reason, then I appoint my son-in-law, JEFFREY TEW, to act as Guardian of my person and property.

Subsequently, on May 12, 2009, Tew filed a petition to determine incapacity seeking the appointment of a guardian of the property of Shirley. Tew later filed a motion to amend, seeking the determination of Shirley’s total incapacity and the appointment of a plenary guardian. 74 u Chapter 3. Guardianship/Conservatorship At the hearing on the petition, the probate court heard testimony from the examining committee concerning Shirley’s mental capacity. Additionally, Tew presented evidence that the appellants and Maureen were in disagreement as to Shirley’s living arrangement: the appellants sought to rotate caring for their mother in each of the daughters’ homes, while Maureen believed that Shirley should remain in her home and be cared for by medical aides. At the conclusion of the hearing, the probate court found Shirley to be incapacitated and, at the suggestion of Tew, appointed Dresner, Shirley’s long-time accountant, as her plenary guardian. The probate court appointed Dresner, rather than Shirley’s daughters, because it was under the impression that the Declaration required them to be in agreement in order to serve as guardian. Specifically, the probate court found that the Declaration ‘‘named the three daughters to act in unison’’ and ruled that ‘‘[t]he three daughters being in deadlock, they cannot be appointed as co-guardians. The assets of Shirley Magill will dissipate very quickly if the three daughters have to come to court on most issues to be resolved.’’ The probate court was under the impression that the Declaration required the three daughters to act in unison because of representations made by Tew concerning the contents of the Declaration. It is undisputed that at the time of the hearing neither Tew nor Nguyen had filed the Declaration with the probate court. The appellants appeal from the order appointing Dresner as plenary guardian, arguing that the probate court erred in disregarding Shirley’s Declaration that her daughters serve as her guardian.

2. Dresner, who had been acting as the emergency temporary guardian of Shirley’s property, expressed reservations about being the guardian of Shirley’s person. . . . The trial court instructed Dresner to refer to the appellants and Maureen and to try to act in a way with which all of the sisters would agree, or to hire a case manager. As this Court has previously stated, ‘‘[w]here a ward’s preference as to the appointment of a guardian is capable of being known, that intent is the polestar to guide probate judges in the appointment of their guardians.’’ Florida’s pre- need guardian statute, section 744.3045, Florida Statutes (2009), provides for a statutory rebuttable presumption in favor of the designated preneed guardian serving as guardian. That statute states in relevant part: 4) Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.

The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian. The probate court is not bound to appoint the designated preneed guardian as guardian when that preneed guardian is found to be unqualified to serve.

§744.3045(4). . . . An appellate court reviews a probate court’s appointment of a guardian under an abuse of discretion standard. . . . Accordingly, where the ward has designated a preneed guardian in a written declaration, as Shirley did in this case, the rebuttable presumption in favor of that designated preneed guardian serving as guardian may only be overcome by substantial, competent evi- dence. . . . We find that the probate court abused its discretion in appointing Dresner as Shirley’s plenary guardian. First, the probate court failed to properly consider the Declaration prior to appointing Dresner. It is undisputed that the Declaration was not filed with the probate court until June 24, 2009, eight days after the Magill v. Dresner Case u 75 hearing on the petition. Therefore, the probate court did not have the Decla- ration before it when it concluded that the Declaration required all three daughters to act in unison as guardian. Instead, the probate court based its conclusion on representations made by Tew concerning the Declaration as well as other testamentary documents Shirley executed. This was error. Second, contrary to the probate court’s belief, the Declaration is clear that it is Shirley’s wish that in the event of her incapacitation her three daughters are to serve as her guardian. The probate court did not make a factual finding that any of the daughters was unqualified, unwilling, or unable to serve as guardian.

Rather, the probate court based its conclusion on a belief that the Declaration required them to act in unison, and that because one of the sisters, Maureen, was not in agreement with the appellants concerning their mother’s living arrange- ment, she could not appoint all three to serve as guardian. Because the Decla- ration does not require unanimity among the daughters in order to be appointed or serve as guardian, this conclusion was also erroneous. Finally, there was no evidence that the appointment of the daughters as guardian would not be in Shirley’s best interest. The record reveals simply that the appellants and Maureen are in disagreement concerning one aspect of their mother’s life — her living arrangement. As already explained, the Declaration does not require that they be in agreement on all aspects of their mother’s life or care. Because Dresner and Nguyen agreed with Maureen’s proposal for her mother’s living arrangement and the probate court ultimately appointed Dresner as plenary guardian, the probate court’s ruling has the effect of allowing the minority of the designated preneed guardians to control the majority. This result, however, is contrary to the plain language of the Declaration, which clearly allows for decisions concerning guardianship matters to be made by majority rule rather than minority. Additionally, the probate court’s finding that Shirley’s assets will ‘‘dissipate very quickly’’ because the appellants and Maureen cannot agree on this one aspect of their mother’s life has no basis in fact in the record. For the above reasons, the record lacks substantial competent evidence to overcome the statutory presumption that the designated preneed guardians, as set forth in Shirley’s Declaration, are entitled to serve as her plenary guardian.

Accordingly, we reverse the order on appeal appointing Dresner the plenary guardian and reverse with directions to the probate court to appoint all three daughters, the appellants and Maureen, as the plenary guardian of their mother, Shirley. Affirmed in part, reversed in part, and remanded with directions. 76 u Chapter 3. Guardianship/Conservatorship ACROSS 2. Judicial determination 3. Letters of 8. Covers all matters 9. Guardian to act if named guardian does not 11. Determination based on diagnosis alone 12. patriae, state power to protect 13. Guardianship for specific purpose or transaction Crossword Puzzle u 77 14. Court makes these to justify decision 20. Individual for whom guardianship proceedings are pending 23. Initials sometimes used to describe individual for whom guardianship is proposed 24. A diagnosis indicating mental deterioration of physical origin 25. Ward’s interest in self- must be balanced against need for protection 26. bond 27. A drug with impact on mind, emotions, or behavior 28. Most states look for the least means of protection 29. Guardian in another state DOWN 1. Responsible for property 4. Determination that focuses on person’s abilities 5. Ward’s property, income, assets 6. judgment 7. investor rule 10. Pro , acting for self 15. Home 16. Guardianship available in emergency situations 17. Without funds 18. Guardian of , responsible for physical well-being 19. Power of court to hear case 21. Location of trial within proper court system 22. parties, entitled to notice 78 u Chapter 3. Guardianship/Conservatorship 4 uuu Social Security uuu Overview of OASDI Participation Funding Entitlement to and Calculation of Retirement Benefits Same-Sex Couples Common-Law Marriage Applying for and Receiving Retirement Benefits Entitlement to and Calculation of Disability Benefits Working with SSA Common Problems Appeals Process Objectives When you complete this chapter, you will: . Understand the differences between the major U.S. Social Security pro- grams. . Know who is eligible for benefits under the major programs. . Describe how social security retirement and disability benefits are calcu- lated. . Understand the appeals process for Social Security Administration determinations. 79 . Know how to resolve common problems with the Social Security Ad- ministration. Overview of OASDI The United States social security system, sometimes called OASDI (Old-Age, Survivors, and Disability Insurance), originated as part of the New Deal during the Great Depression of the 1930s. Many other countries have similar systems and treaties called totalization agreements that address the situation of people who have moved from one country to another. The U.S. system includes several programs, including the larger OASDI programs for: . Retirement benefits for contributing workers and spouses (and some divorced former spouses) and disabled 1dependent children. . Survivor benefits, available to spouses (including some divorced spouses) and dependents (children and dependent parents) of deceased workers. . Disability insurance, available to disabled workers, spouses age 62 or older (including some divorced spouses), dependent or disabled children of workers, and spouses of workers if the spouse is caring for the worker’s disabled child or child younger than age 16. . Health Insurance for Aged and Disabled ( Medicare ) (discussed in Chapter 6). . Grants to States for Medical Assistance Programs ( Medicaid ) (discussed in Chapter 7). These ‘‘social security’’ programs are social insurance, not retirement or pension plans. Unlike most private plans, social security is ‘‘portable’’ — that is, a worker can change employers many times and generally will continue to con- tribute to and be entitled to payments from the same system. A private pension is not universal — it does not necessarily cover all individuals in a particular work- place or the dependents of those who are covered. Social Security covers the majority of American workers and does make payments to people who have not contributed, based on their relationship to a contributor ( derivative benefits) . On the other hand, these programs are funded by contributors and are not ‘‘welfare.’’ A private system accumulates money paid into it, invests the funds, and eventually uses that money to pay pensions to the workers who contributed to the fund. Social Security is a ‘‘pay as you go’’ system because benefits have his- torically been paid almost entirely by using revenue from current payroll taxes.

FICA contributions from current workers are used to pay benefits to retired workers. It is projected that payroll tax revenue will be insufficient to cover Social Security benefits within the next 25 years and that the system will begin to withdraw money from the Social Security Trust Fund. There is significant 1A disabled child can be any age, but the disability must have begun before the child reached age 22 and, with some exceptions, married children are not eligible for benefits. OASDI Old-Age, Survivors, and Disability Insurance Totalization Agreements Agreements with othercountries, concerning people who have worked in two or more countries Medicare Health insurance for aged and disabled Medicaid Grants to states for medicalassistance programs Derivative Benefits Benefits paid to peopleother than the worker who contributed 80 u Chapter 4. Social Security political controversy about the Trust Fund, because its assets are Treasury Bonds; the actual ‘‘funds’’ are on loan to the federal government. Social security was originally intended as one of three parts of a person’s retirement, along with a private pension and investments. Increasingly, workers do not have private pensions or investments, and a surprising percentage try to make ends meet with only a social security check — an average of slightly more than $1,000 per month in 2010. Clients may confuse the various benefits administered by the govern- ment — they may refer to all benefits programs as ‘‘social security.’’ They may have no knowledge of other programs from which they could benefit. To fully serve clients, paralegals should be aware of several programs that are not part of OASDI and that are beyond the scope of this book: . Unemployment benefits, a joint federal-state program financed through employer payroll taxes. . Temporary Assistance for Needy Families ( TANF ), a federally funded, state-administered program, administered by the Administration for Children and Families within the U.S. Department of Health and Human Services. This program may assist elder clients who are caring for grandchildren and experiencing financial need. . Supplemental Security Income ( SSI ), assistance for the elderly, blind, and disabled with minimal income and assets. Unlike retirement and disability benefits, which are based on contributions to the system, SSI is based on the recipient’s resources. Although it is administered by the Social Se- curity Administration, it is not funded by the same source. As of January 2010, 26.4 percent of SSI recipients were age 65 or older. . Two other federal system parallel, but are separate from, traditional ‘‘social security.’’ Until 1984, employment by the federal government was covered under the Civil Service Retirement System (CSRS) and not by Social Security. In 1984, the Federal Employees Retirement System ( FERS ) was established to cover new federal workers. Some workers who had been covered by the CSRS program chose to switch to the FERS program. Work under FERS is covered by Social Security. In addition, there is a separate Railroad Retirement System (http://www.rrb.gov ) that provides monthly benefits to retired and disabled workers and their dependents and to survivors of deceased railroad workers. The number of people covered by the railroad workers system has declined. Participation Almost all Americans, even those who have never worked or paid into the system, are eligible for at least some social security benefits. As shown in Exhibit 4.1, a substantial percentage of people are currently receiving benefits. That number is expected to grow, and the change in the ratio of current recipients to current contributors is also expected to change. The various programs identified in the exhibit have different eligibility requirements, discussed in the sections that follow. TANF Temporary Assistance forNeedy Families SSI Supplemental Security Income FERS Federal EmployeesRetirement System Railroad Retirement System Not part of social security system Overview of OASDI u 81 EXHIBIT 4.1 Social Security Benefits 2 In 2010, nearly 53 million Americans will receive $703 billion in Social Security benefits. That is about 17 percent of the population, or 310,067,246, as of this writing. 3 Group Number Payments Retired workers 34 million $40 billion Dependents 2.9 million $1.7 billion Disabled workers 8 million $8.5 billion Dependents 1.9 million $0.6 billion Survivors 6.4 million $6.3 billion Social Security is the major source of income for most of the elderly:

. Nine out of ten individuals age 65 and older receive Social Security benefits. . Social Security benefits represent about 40 percent of the income of the elderly. . Among elderly Social Security beneficiaries, 52 percent of married couples and 72 percent of unmarried persons receive 50 percent or more of their income from Social Security. . Among elderly Social Security beneficiaries, 20 percent of married couples and about 41 percent of unmarried persons rely on Social Security for 90 percent or more of their income. Social Security provides more than just retirement benefits:

. Retired workers and their dependents account for 69 percent of total benefits paid. . Disabled workers and their dependents account for 19 percent of total benefits paid.

About 91 percent of workers age 21 to 64 in covered employment and their families have protection in the event of a long-term disability. Almost one in four of today’s 20-year-olds will become disabled be- fore reaching age 67. 69 percent of the private sector workforce has no long-term disability insurance. 2http://www.ssa.gov/pressoffice/basicfact.htm3http://www.census.gov 82 u Chapter 4. Social Security Funding OASDI and Medicare benefits are funded by payroll taxes on employers and employees called FICA (Federal Insurance Contributions Act) contributions, which are deposited into dedicated funds. If a worker is self-employed, the worker pays the entire tax; otherwise the employer and employee each pay half of the FICA amount — see Exhibit 4.2. Many state and federal workers, student workers, members of religious communities, and a few others do not pay FICA.

These workers may still be eligible for benefits if they have a sufficient history of contributing through other employment, but their benefit amounts are affected, as described later in this chapter. Survivors of deceased workers account for about 13 percent of total benefits paid: . About one in eight of today’s 20-year-olds will die before reaching age 67. . About 97 percent of persons age 20 to 49 who worked in covered em- ployment in 2010 have survivors insurance protection for their young children and a surviving spouse caring for the children. An estimated 156 million workers, 93 percent of all workers, are covered under Social Security: . 52 percent of the workforce has no private pension coverage. . 31 percent of the workforce has no savings set aside specifically for re- tirement. Can the System Survive? In 1935, the remaining life expectancy of a 65-year- old was 12.5 years; today it’s 18 years. By 2035, there will be almost twice as many older Americans as today — up from 40.7 million today to 76.3 million.

There are currently 2.9 workers for each Social Security beneficiary. By 2035, there will be 2.1 workers for each beneficiary. FICA (Federal Insurance Contributions Act) Payroll taxes that fund socialsecurity benefits Overview of OASDI u 83 EXHIBIT 4.1 (continued) EXHIBIT 4.2 Internal Revenue Service Form W-2 You are probably familiar with IRS Form W-2. Note that boxes 3 through 7 require the employer to identify the employee’s income that was subject to FICA and how much was actually withheld (based on the percentages shown below) and submitted to FICA. Tax Rates as a Percentage of Taxable Earnings 4 Rate for Employees and Employers, Each Medicare HI* Total Self- Employed Self- Employed HI Total 6.20% 1.45% 7.65% 12.40% 2.90% 15.30% *Hospital Insurance 4Tax rates are set by the Internal Revenue Code. 84 u Chapter 4. Social Security Are You a FICA Contributor? FICA (Social Security and Medicare) taxes do not apply to service performed by students employed by a school, college, or university where the student is pursuing a course of study. Whether the organization is a school, college, or university depends on the organization’s primary function. In addition, whether employees are students for this purpose requires examining the individual’s employment relationship with the employer to determine whether employment or education is predominant in the relationship. See http://www. irs.gov/charities/article/0,,id=120663,00.html for more information. There is a limit on the amount subject to FICA each year, known as the contribution and benefit base . In 2010, that amount was $106,800. Throughout a worker’s career, the Social Security Administration (SSA) keeps track of her earnings. Monthly retirement benefits depend upon earnings record and the age at which the retiree chooses to begin receiving benefits.

Entitlement to and Calculation of Retirement Benefits Eligibility for retirement benefits depends on a ‘‘credit’’ system. By meeting a minimum income threshold ($1,120 per credit in 2010), workers can earn up to four credits per year toward retirement benefits. Anyone born in 1929 or later needs 10 years of work (40 credits) to be eligible for retirement benefits. People born before 1929 need fewer years of work. A worker’s retirement income benefit is based on his Primary Insurance Amount (PIA) , which is a percentage of the highest 35 years of the worker’s covered earnings (before deduction for FICA), limited by the contribution and benefit base. If the worker has fewer than 35 years of covered earnings, zeros are used to bring the total number of years of earnings up to 35. Wages are indexed to account for inflation, using the average wage index (AWI ). The PIA is ad- justed annually by automatic cost-of-living adjustments. Low-income workers receive a higher percentage of average lifetime earnings than those in the upper income brackets. A worker with average earnings can expect a retirement benefit that replaces about 40 percent of his average lifetime earnings. The earliest age at which (reduced) retirement payments are payable is currently 62. Full retirement benefits depend on a retiree’s year of birth: Contribution and Benefit Base Limit on wages subject to FICA Social Security Administration (SSA)Administers social security programs Primary Insurance Amount (PIA) Average of highest 35 years of earnings Average Wage Index (AWI)Adjusts contributions for inflation Entitlement to and Calculation of Retirement Benefits u 85 Year of Birth Full Retirement Age 1937 or earlier 65 1938 65 and 2 months 1939 65 and 4 months 1940 65 and 6 months 1941 65 and 8 months 1942 65 and 10 months 1943–1954 66 1955 66 and 2 months 1956 66 and 4 months 1957 66 and 6 months 1958 66 and 8 months 1959 66 and 10 months 1960 and later 67 A worker who starts benefits before normal retirement age has her benefit reduced based on the number of months between the start of benefits and normal retirement age. A worker might also continue working beyond full retirement age, which can increase future benefits in two ways. Each additional year of work adds another year of earnings to the mix in calculating PIA. In addition, benefits increase automatically by a certain percentage from the time the worker reaches full retirement age until she starts receiving benefits or until she reaches age 70.

The percentage varies depending on year of birth. For example, for a worker born in 1943 or later, 8 percent per year is added to the benefit for each year beyond full retirement age in which the worker does not seek benefits. Under the Senior Citizens’ Freedom to Work Act of 2000, 42 U.S.C. 403, a worker who has reached full retirement age can work and earn any amount with no reduction in benefits. If a recipient, younger than full retirement age, earns more than a certain amount, benefits are reduced, but not truly lost. Benefits are increased at full retirement age to account for benefits withheld due to earlier earnings. There are special rules for the first year after retirement; see http://www. socialsecurity.gov/pubs/10069.html . The retirement age rules and the calculation of benefits are different for those claiming benefits as: . Unmarried children — under age 18, or 18 to 19 years old and a full-time student (up to grade 12), or over 18 and disabled — who have a parent who is disabled or retired and entitled to benefits or have a deceased parent who paid enough into the system. . Surviving or current spouses, qualified by age (a spouse may not have worked or may have contributed less to the system and, therefore, may obtain better benefits applying under other spouse’s work record). . Divorced, unmarried former spouses, qualified by age (generally eligible if the marriage lasted for at least 10 years), of a retired or deceased worker. . Surviving parents, of qualifying age, who received at least half of their support from a deceased worker. 86 u Chapter 4. Social Security Same-Sex Couples Although at least one federal court challenge is pending, as of this writing, claiming benefits under the history of a same-sex partner was precluded by 1 U.S.C. 7, the 1996 Defense of Marriage Act, which states: ‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’ Common-Law Marriage A ‘‘common-law marriage’’ is one in which neither a religious nor civil ceremony was held. In some states, a common-law marriage exists if a man and a woman agree to be married for the rest of their lives. Most states (even those in which a man and woman cannot enter into a valid common-law marriage) generally recognize a common-law marriage that has been validly entered into in another state. The SSA will recognize a common-law marriage with adequate proof. The SSA has a form to allow the parties, or the survivor, and relatives (or others) to answer questions; other relevant evidence can include bank and insurance records, rent receipts, or other documentation of transactions entered into as a couple. Benefits may also be reduced under the Government Pension Offset ( GPO) if the applicant, spouse, widow or widower (remember, a worker’s spouse may have had a job, but apply for spousal social security benefits) receives a pension from a federal, state, or local government job at which she did not pay Social Security taxes. Under the Windfall Elimination Provision ( WEP ) a worker who is eligible for a pension from any governmental agency or nonprofit organization, or who worked in another country and did not pay into U.S. social security on those earnings, may also have benefits decreased but not totally eliminated. These provisions, said to prevent ‘‘double dipping,’’ can result in hardship for workers who have spent part of their careers in the private sector, contributing to the system, and part of their careers in the public sector. Their benefits are reduced, according to a calculation table. Given the complexity of these calculations and the likelihood of change, there is no reason to memorize the rules. The SSA makes access to the rules and calculation of benefits relatively easy: http://www.socialsecurity.gov/pgm/links_- retirement.htm Applying for and Receiving Retirement Benefits The SSA recommends application for benefits about three months prior to re- tirement. The process can be handled online ( http://www.socialsecurity.gov/pubs/ 10523.html ), although the SSA may request documentation, such as a birth, death, or marriage certificate, depending on the benefits being claimed. It is possible to GPO Government Pension Offset WEP Windfall Elimination Provision Entitlement to and Calculation of Retirement Benefits u 87 claim benefits but suspend receipt of those benefits if, for example, the worker does not currently need the income but wants to enable a spouse to claim benefits. Beginning in March 2011, the SSA requires that beneficiaries receive their monthly benefits by direct deposit or direct express. About one-third of reci- pients have to pay income taxes on a percentage of their benefits, based on combined income from various sources. The SSA mails a benefit statement (Form SSA-1099) showing the amount of benefits received. Recipients with tax liability on their benefits may opt to have federal taxes withheld, or may make quarterly estimated tax payments. To prevent erosion of benefits by inflation, there is an annual cost-of-living adjustment ( COLA ). The COLA is based on the percentage increase in the Consumer Price Index. If there is no increase, there is no COLA.

Entitlement to and Calculation of Disability Benefits The program known as Social Security Disability Insurance (SSDI) pays benefits to people who are younger than retirement age and cannot work because of a medical condition. Benefits are based on work history; Supplemental Security Income (SSI) is available to disabled individuals with limited or no work history. The federal definition is very strict and requires that the disability be expected to last at least one year, result from a listed condition, or be expected to result in death. SSDI does not cover partial disability or short-term disability, although individuals who have such conditions (or who are otherwise ineligible under the disability program, such as young children who have become disabled) may be eligible for SSI. For adults, 18 and older, the medical criteria for SSI and SSDI are the same. The worker must be unable to continue in his or her previous job and unable to adjust to other work, with age, education, and work experience taken into account. Application for SSDI should be made as soon as the disability occurs because the process will take at least several months. Initial applications are often rejected, so the applicant must appeal and even seek a hearing. Benefits begin in the sixth full month after the disability began but are paid in arrears. This means that an individual must be disabled for at least six months before receiving benefits. So, if a person’s disability is determined to have begun on January 15, her first disability benefit will be paid for the month of July and be received in August. Medicare coverage starts automatically after a person has been on disability for two years.

When a person receiving disability benefits reaches retirement age, the benefits remain the same but become retirement benefits. Once the SSA determines that the individual qualifies under tests described in Exhibit 4.3, the applicant will be referred to her state’s Disability Determi- nation Services office. That office will gather information from medical providers and may require and pay for a special examination. Based on whether the ap- plicant is working, what kind of work the applicant has done or can do, the severity of the condition as described in medical records and whether it is on the list of impairments (there are special rules for blind people), the office will make a decision and send a letter detailing that decision. Benefits can be granted im- mediately if the claimant’s impairment meets all the qualifications of severity as COLA Cost-of-living adjustment 88 u Chapter 4. Social Security described in the ‘‘Listing of Impairments.’’ If the listing specifications are not met, the SSA reviews the case in more detail to determine whether the claimant is disabled and unable to work, considering not only from past work, but from all work, even the most sedentary. If the applicant disagrees with the decision, she may pursue an appeal as described later in this chapter. The amount of the SSDI benefit is based on average lifetime earnings and, like retirement benefits, may be affected by the individual’s entitlement to a government pension. Benefits are not available to workers who are confined because of commission of a serious crime, which includes confinement to a medical facility based on a finding of not guilty by reason of insanity or incom- petence to stand trial; workers who have violated a condition of parole or pro- bation; and workers who have outstanding warrants for serious crimes. In some cases, family members of such workers may be entitled to benefits. Individuals receiving disability are encouraged to try working again. Special work incentives and employment support programs allow them to keep benefits and Medicare coverage while they ‘‘test the waters.’’ In addition, under the ‘‘ticket to work’’ program, disabled individuals can obtain training and other services to help them get back to work.

Working with SSA Common Problems As described in Exhibit 4.4, paralegals are often on the frontlines of dealing with the SSA on behalf of clients. Efficient delegation to paralegals is essential to keeping the cost of legal services reasonable. Some problems are common and can be resolved easily:

Common Problem Solution Wages or other information reported incorrectly Workers age 25 and older receive annual statements, which must be checked for inaccurate information. Worker has three years to report inaccuracies, but there is no time limit on correcting failure to report.

Worker needs W-2, pay stub, or evidence from the employer (if self-employed, tax return and proof of timely filing) and form OAR 7008: http://www.ssa.gov/online/ssa- 7008.pdf and http://www.socialsecurity.gov/ pubs/10081.html Derivative benefits may be higher than worker’s Determine whether entitled to benefits as widow(er) or divorced former spouse:

http://www.socialsecurity.gov/retire2/ applying6.htm Applicant not competent Obtain designation of a representative payee to deal with SSA and manage benefits: http:// www.socialsecurity.gov/payee/faqrep.htm Working with SSA u 89 Common Problem Solution Client receives notice of overpayment Appeal (described below) or request a waiver of recovery of overpayment: http://www. socialsecurity.gov/OP_Home/handbook/ handbook.19/handbook-1914.html Other times, the SSA makes a determination adverse to the applicant, and appeal is appropriate. Some SSA decisions are not considered ‘‘initial determi- nations’’ and are not subject to administrative or judicial review. Examples in- clude withholding part of a monthly benefit to recover an overpayment, authorizing fees for representation, and denying a request to extend the time period to request review of a determination or decision.

Appeals Process The SSA mails a written notice of the initial determination (except in cases in- volving termination of benefits due to death), which, in the context of retirement or disability benefits, might typically involve: . Entitlement, continuing entitlement, or re-entitlement to, or termination of benefits. . Amount of benefits or recomputation of benefits. . Revision of earnings records. . Deduction from benefits because of work. . Establishment or termination of a period of disability. . Whether benefits should be paid to another person on the applicant’s account. . Who will act as representative payee . . Overpayment or underpayment of benefits, and whether overpaid bene- fits must be repaid. . How underpayment of benefits due a deceased person will be paid. . Deduction from disability benefits because of refusal to accept rehabili- tation services. . Whether vocational rehabilitation will significantly increase the likelihood that the person will not have to return to disability benefits so that benefits may be continued even though the person is not now disabled. . Reduction in disability benefits because of receipt of benefits for workers’ compensation. . Penalties imposed because of failure to report certain events. . Nonpayment of benefits because of confinement for more than 30 con- tinuous days in a correctional institution for conviction of a crime or in a medical facility because a court found the individual was not guilty for reason of insanity, that he was unable to stand trial due to mental defect, or that he was sexually dangerous. . Nonpayment because a person has not furnished satisfactory proof of eligibility or Social Security number. . Nonpayment of benefits because the recipient has an unsatisfied warrant for more than 30 continuous days for certain crimes and parole/proba- tion conditions. Representative Payee Person who acts on behalf of benefit recipient 90 u Chapter 4. Social Security EXHIBIT 4.3 Who Can Receive Benefits under SSDI? . Disabled works who qualify under the ‘‘recent work’’ and ‘‘duration of work’’ tests. . Certain blind workers who meet the ‘‘duration of work’’ test. . Certain family members of a disabled worker. . Spouse (may include ex-spouse if married to worker 10 years and not remarried) age 62 or older. . Spouse, any age, if caring for a child of the worker — younger than 16 or disabled. . Unmarried child (includes an adopted child and, in some cases, a step- child or grandchild) under age 18 or under age 19 if in elementary or secondary school full time. . Unmarried child, with a disability that started before age 22. SSA limits the amount that can be received by a family if several members are eligible for benefits. Partial Sample of Duration of Work Test Chart Age at Which Worker Became Disabled Duration of Work Generally Required Before age 28 1.5 years 30 2 years 34 3 years 38 4 years 42 5 years Recent Work Test Worker Became Disabled Generally Needs In or before the quarter of 24th birthday 1.5 years of work during 3-year period ending with the quarter disability began In the quarter after 24th birthday but before the quarter of 31st birthday Work during half the time for the period beginning with the quarter after 21st birthday and ending with the quarter disability began In the quarter of 31st birthday or later Work during five years out of the 10- year period ending with the quarter disability began Working with SSA u 91 EXHIBIT 4.4 Noel Says Noel S. Anschutz, Disability Claims Director at the Richard Harris Firm in Las Vegas, obtained an AAS in Paralegal Studies from the ABA-approved program at Pima Community College, followed by a BS in Business Administration. Noel is proud to be an aggressive advocate for the rights of the injured and disabled. She has a strong litigation background and worked in legal aid before becoming a Professional Social Security Representative. She is the first non-attorney in Nevada operating under the SSA’s non-attorney direct-pay project. This means she has taken a competency exam administered by the SSA, carries malpractice insurance, and must meet minimum yearly continuing legal education require- ments. Ms. Anschutz is a member of the National Organization of Social Security Representatives, a Board Member of the Community College of Southern Nevada Paralegal Program Advisory Board, a member of the National Federation of Paralegal Associations, Past President of the Paralegal Association of Southern Nevada, and a member of the State Bar of Nevada Ethics Committee. Describing her career path, Noel says:

All of the jobs I have had in the past are a complete culmination of skills and experiences that help me do my job today. Working at Legal Aid was particularly instrumental. I took that job specifically to learn Social Security disability law as it is a very small area of law where it is hard to gain experience. Hosting and coordinating a national paralegal convention was also instrumental. I gained skills related to organization, leading a team, project management, and stress management. [In my current job I make] independent decision about client acceptance, handle the case from initial client interview to administrative hearings, manage two staff members, and report to the owner of the firm. [To succeed in this field:] Do the internship! Try working for a temp agency. You will get a feel for different law firms and different areas of law without committing. Temp. jobs sometimes lead to permanent employment. Establish your reputation. Reputation is everything as legal communities are typically very small.

Don’t burn your bridges, ever . You are the commodity; sell yourself: What skills do you have that will benefit the employer, not how can the employer benefit you. Get a Web site with your resume information on it, make business cards, buy personalized thank-you cards. Actively participate in your local paralegal association. Work for quality lawyers and law firms. The attorney you work for makes a difference. Take initiative but be careful not to go too far. You don’t know what you don’t know — ask questions, even if you think you are right. However, don’t go to the attorney with problems. Go with the problems and a few solutions. It shows initiative and doesn’t put more stress on the attorney. This is what you were hired for, to relieve some of the stress, not add to it.

Case management skills make you invaluable. Try to learn this on the job — it’s a difficult skill to teach in a classroom. Paying attention to detail is a must , as are the ability to focus for long periods of time, tenacity, and having some compulsive traits. There will be attorneys who are difficult to work with. If you are working for a difficult but good attorney, learn all you can and get out. Sometimes the difficulty is related to the attorney’s stress level, trust level, or personal problems; whatever you do, don’t take it personally. Grow a thick skin and respectfully stand up for yourself when necessary. Humor also can go a long way to facilitate stress relief. Abuse should never be tolerated, and is never worth it, no matter how much money you are making. 92 u Chapter 4. Social Security The notice will state the reasons for the determination, the effect of the determination, and information concerning the right to reconsideration or a hearing. If an applicant is dissatisfied with SSA’s initial determination, she may have to pursue administrative review. All requests made in this process should be made in writing; the SSA has forms available for most requests. The requests can be filed with any SSA office or office of the Railroad Retirement Board, if ap- propriate. In general, each request must be filed within 60 days of the deter- mination that triggered the request. A longer period may be allowed for good cause, if the applicant requests an extension before the decision becomes final; otherwise failure to timely file a request makes the decision permanent. The process starts with a written request for reconsideration, which can include an opportunity to submit additional evidence. In some kinds of cases reconsideration is called a case review, a disability hearing, an informal confer- ence, or a formal conference. Reconsideration is the SSA’s means of self-moni- toring and is conducted by a reviewer who was not involved in the initial decision.

Some states have pilot programs under which an applicant can skip the recon- sideration step and go directly to the next step. In addition, an expedited appeals process is available, allowing the case to go directly to a federal district court at this point, if the only issue is the constitutionality of a provision of the Social Security Act. If reconsideration does not produce a satisfactory result, the applicant should make a written request for a hearing before an Administrative Law Judge (ALJ) of the Office of Disability Adjudication and Review ( ODAR ). It may take several months to get a hearing. Under certain circumstances, an ALJ can make a de- cision without an oral hearing. If there is a hearing, the applicant will be sent notice of the time and place at least 20 days in advance and may appear in person or by video teleconference. The applicant may appear alone or with a represen- tative, who need not be an attorney. The representative must be designated in writing (SSA-1696-U4: http://www.socialsecurity.gov/online/ssa-1696.pdf ). If the representative is not an attorney, he must also sign the SSA-1696-U4 or submit a written acceptance. It is not necessary for an attorney to accept an appointment in writing. The representative may not sign or testify on behalf of the applicant, but he may submit and examine evidence, make statements, and perform other functions. New evidence and testimony may be presented; the applicant may examine evidence and question witnesses. Under limited circumstances, the ap- plicant and necessary witnesses may receive an allowance for travel expenses. The ALJ has authority to call pre-conferences, post-conferences, and to issue sub- poenas. The ALJ may also have experts, such as doctors, to act as advisors. After the ALJ makes a determination, the applicant may request review by the Appeals Council of the Office of Disability Adjudication and Review (or the Council may request review on its own motion). The Appeals Council, which is located in Virginia, does not hold hearings; it accepts written briefs, and response time can be very slow. Review of an Appeals Council decision goes to a federal district court. Federal district court decisions can be reviewed by federal circuit courts of appeal; the Supreme Court may review decisions by circuit court. A decision that has become final within the SSA may be reopened and revised, on request by the applicant or on SSA’s own motion: A. Within 12 months from the date of the notice of the initial determination for any reason; ALJ Administrative Law Judge ODAR Office of DisabilityAdjudication and Review Subpoenas Used to obtain evidence and testimony Working with SSA u 93 B. Within four years (two years in the SSI program) from the date of the notice of the initial determination, if there is good cause for reopening it. ‘‘Good cause’’ can be found to exist if: 1. New and material evidence is submitted; 2. A clerical error was made; or 3. The evidence that was considered in making the determination or decision clearly shows that an error was made. 5 C. At any time if the determination or decision was based on fraud or similar fault.

A decision to not reopen is not an initial determination and is not subject to appeal. Assignments 1. Using the Social Security Web site, determine: A. What information is required to complete a basic application for disability benefits and which other forms are required. B. Whether a worker’s retirement benefits are reduced when that worker’s divorced former spouse seeks benefits based on the worker’s contributions. C. How the SSA is normally notified of a death, and what is the one- time payment that may be made to a spouse at the time of a worker’s death. 2. Use a search engine to find the Disability Determination Services office for your state; does it describe the ‘‘five-step process’’? 3. Use the SSA Web site ( http://www.ssa.gov/disability/professionals/blue- book/AdultListings.htm ) to determine under what circumstances HIV infection is listed as an impairment for an adult and for a child. 4. Determine whether the United States has a totalization agreement with Mexico. 5. Critical Thinking: Jack, a high-earning lawyer, born in 1948, spent 20 years in the Army JAG Corps, followed by 20 years in private practice, and is ready to retire. Jack was married to Chris for 12 years. Chris was born in 1959, but has not worked since 1985, when their child, Pat, was born. Pat was born prematurely and has extensive disabilities. Pat has never worked and will never be able to work. Jack’s current spouse, Lyn, was born in 1962, and currently works full-time. They have a child, Jordan, born in 2004. Lyn would like to retire as soon as possible.

Jack’s mother, born in 1929, relies on Jack for more than half of her support. Identify all of the possible benefits available and all of the factors that will be relevant to the calculation of benefits. 5http://www.socialsecurity.gov/OP_Home/handbook/handbook.20/handbook-toc20.html 94 u Chapter 4. Social Security 6. Critical Thinking: Read the Antonson case at the end of the chapter. A. Draft a timeline of events, focusing on the procedural history of the case. Assuming that the plaintiff is genuinely unable to work, do you think the timeframe is reasonable? B. Note that the plaintiff was accompanied at the hearing by a para- legal. What do you think about that? C. What does the court mean by de novo review? Explain how the standard of review operates in a case like this. D. Describe, in your own words, what the ALJ could have done to avoid remand in this case and to enter the same decision, so that it would be upheld on appeal. 7. Identify and discuss at least two proposals for ‘‘saving’’ social security from the shortfall predicted to result from increased life expectancy, the change in the ratio of contributors to recipients, and the federal gov- ernment’s borrowing from the fund. 8. Use the online calculator at http://www.ssa.gov/planners/bene- fitcalculators.htm to estimate your own social security benefits or those of a friend or family member. Review Questions 1. What is meant by the expression ‘‘pay as you go’’ system?

2. Explain the PIA and AWI calculations.

3. How does part-time work after retirement affect benefits?

4. What should be done if a client is not competent to deal with the SSA?

5. Why might a worker, eligible for retirement benefits, ‘‘claim and sus- pend’’? 6. Identify outside factors that may reduce a person’s retirement or dis- ability benefits. 7. What are the basic requirements for disability benefits?

8. Can a paralegal represent a client at a social security hearing? Are there any special requirements? Review Questions u 95 ANTONSON V. ASTRUE 2009 U.S. Dist. LEXIS 125482 (U.S. District Court, D. N.Y.) In June 2003, Plaintiff filed applications for disability, disability insurance, and Supplemental Security Income benefits. Plaintiff alleges that he was disabled and unable to work during the period between November 13, 2002 and March 1, 2004, primarily due to pain and depressive disorder. Plaintiff’s applications were denied by the Commissioner of Social Security. Plaintiff, through his attorney, commenced this action on June 3, 2008, by filing a Complaint in the United States District Court for the Northern District of New York. Plaintiff seeks ju- dicial review of the Commissioner’s denial of benefits. [B]ecause of deficiencies in the record, the Court recommends that this case be remanded. In June of 2003, Plaintiff applied for disability, disability insurance, and SSI benefits, alleging that he had been unable to work since February 26, 1999. The Commissioner initially denied the applications on February 10, 2004. Plaintiff timely requested a hearing before an Administrative Law Judge (‘‘ALJ’’). On July 27, 2006, Plaintiff appeared with a paralegal from his attorney’s office at a hearing before ALJ Tyminski in Utica, New York. At the hearing, Plaintiff amended his alleged disability period, claiming disability only during a closed period between November 13, 2002, and March 1, 2004. On September 5, 2006, the ALJ issued a written decision denying Plaintiff’s applications for benefits. The ALJ’s decision became the Commissioner’s final decision on April 24, 2008, when the Social Security Administration’s Appeals Council denied Plaintiff’s request for review.

Plaintiff commenced this action by filing a Complaint on June 3, 2008. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§405(g), 1383(c)(3). [T]he Commissioner’s determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. ‘‘Substantial evidence’’ is ...‘ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’’ Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld. If supported by substantial evidence, the Commissioner’s finding must be sustained ‘‘even where substantial evidence may support the plaintiff’s position and despite that the court’s independent analysis of the evidence may differ from the [Commissioner’s].’’ In other words, this Court must afford the Commis- sioner’s determination considerable deference, and may not substitute ‘‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.’’ The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Se- curity Act. The Supreme Court recognized this analysis in Bowen v. Yuckert, 482 96 u Chapter 4. Social Security U.S. 137 (1987), and it remains the proper approach for analyzing whether a claimant is disabled. 3 While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. The final step of the inquiry is divided into two parts. First, the Commissioner must assess the claimant’s job qualifications by considering physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant’s qualifications could perform. See 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §§416.920(g); 404.1520(g). The ALJ concluded that Plaintiff met the insured status requirements of the Social Security Act . . . had not engaged in substantial gainful activity between November 13, 2002 and March 1, 2004 . . . had not established any medically determinable severe impairments that would prevent substantial gainful activity for a continuous twelve months. After reviewing the medical evidence, the ALJ concluded that there was ‘‘no competent and acceptable clinical evidence of record evincing the existence of any impairment or combination of impairments, mental and/or physical, that has precluded [Plaintiff] from engaging in past relevant work for not less than 12 continuous months, let alone the alleged closed period of disability.’’ Therefore, the ALJ determined that Plaintiff was not under a ‘‘disability,’’ as defined under the Act. As noted above, the ALJ’s decision became the Commissioner’s final decision on October 26, 2007, when the Appeals Council denied Plaintiff’s request for review. Plaintiff contends that the decision should be reversed. He offers three (3) principal arguments in support. First, Plaintiff asserts that the ALJ’s decision was not supported by substantial evidence and was contrary to the opinions of Plaintiff’s treating medical providers. Second, Plaintiff argues that the ALJ did not properly credit his allegations of disabling pain. Third, Plaintiff contends that the ALJ did not give sufficient consideration to the effect of Plaintiff’s mental impairments. Under the ‘‘treating physician’s rule,’’ the ALJ must give controlling weight to the treating physician’s opinion when the opinion is well-supported by 3This five-step process is detailed as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity.

If he is not, the [Commissioner] next considers whether the claimant has a ‘‘severe im- pairment’’ which significantly limits his physical or mental ability to do basic work activities.

If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations.

If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the[Commissioner] presumes that a claimant who is afflicted with a ‘‘listed’’ impairment is unable to perform substantial gainful activity.

Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to performhis past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Antonson v. Astrue Case u 97 medically acceptable clinical and laboratory diagnostic techniques and is not in- consistent with the other substantial evidence. 20 C.F.R. §404.1527(d)(2). 4 Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it ‘‘extra weight’’ under certain circumstances. . . . ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion ...:(1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. §404.1527(d)(1)-(6). Plaintiff argues that . . . the following statement by Dr. Masten, an orthopedic and pain management doctor: ‘‘I have stated that he can do his activities of daily living. By that I mean brushing his teeth, combing his hair so he is not totally disabled. But he is severely disabled. He cannot lift more than five pounds at a time if he goes grocery shopping. He is very limited in what he can do. He cannot bend well, he cannot lift, he cannot lift a basket of laundry.’’ Dr. Masten diagnosed Plaintiff as suffering from ‘‘ongoing thoracic and cervical referred pain’’ and opined that his prognosis was ‘‘guarded for full recovery’’ and ‘‘good for partial recovery.’’ Plaintiff’s physical therapist, Wick, noted that he complained ‘‘of being constantly fatigued and when he does any activity after a couple of days he fatigues to the point where he needs five days to rest to recover.’’ Plaintiff also points to records from a visit to Rome Memorial Hospital’s Urgent Care Center, including a visit wherein Plaintiff complained of ‘‘chronic chest pain’’ caused by an injury to his chest. Plaintiff received physical therapy for his pain and was examined by Bryla, a chiropractor. Bryla diagnosed Plaintiff as suffering from a ‘‘mild thoracic strain/ sprain,’’ which he indicated was caused by a February 1999 work injury. ALJ concluded that Plaintiff had not established any medically determinable severe impairments that would prevent substantial gainful activity for a contin- uous 12 months. With regard to Dr. Masten’s assessment that Plaintiff was ‘‘severely disabled,’’ ALJ noted that Dr. Masten ‘‘refused’’ to complete a residual functional capacity assessment. ALJ also referenced Dr. Masten’s statement that Plaintiff could perform his activities of daily living. This Court finds that the ALJ failed to adequately develop the record. The ALJ concluded that Plaintiff had not established any medically determinable ‘‘severe’’ impairments.’’ Thus, the ALJ stopped his analysis at Step Two of the sequential process. ‘‘An impairment or combination of impairments is found ‘not severe’ and a finding of ‘not disabled’ is made at this step when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered (i.e., the person’s impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities).’’ The remaining analysis set forth in Steps Three through Five must be undertaken where the claim is more than de minimis. In July 2003, well within the period of alleged disability, Dr. Masten, Plaintiff’s treating physician, opined that Plaintiff was ‘‘severely disabled,’’ ‘‘very 4‘‘The ‘treating physician’s rule’ is a series of regulations set forth by the Commissioner detailing the weight to be accorded a treating physician’s opinion.’’ 98 u Chapter 4. Social Security limited’’ in what he could do, and unable to lift five pounds. Contrary to the ALJ’s indication, it is not clear that Dr. Masten ‘‘refused’’ to perform a residual functional capacity assessment. Rather, the doctor simply noted that a functional capacity evaluation was ‘‘not done.’’ This does not permit a conclusion that the doctor ‘‘refused’’ to complete a RFC. Moreover, these assessments from Plain- tiff’s treating physician certainly indicated that his condition was more than de minimis. Further, although Dr. Masten stated that Plaintiff was able to perform his activities of daily living, he qualified this statement by explaining that he meant that Plaintiff could brush his teeth and comb his hair, making it clear that he nevertheless considered Plaintiff ‘‘severely disabled.’’ It is well-settled that ‘‘[s] uch activities do not by themselves contradict allegations of disability,’’ as people should not be penalized for enduring the pain of their disability in order to care for themselves. ‘‘We have stated on numerous occasions that ‘a claimant need not be an invalid to be found disabled’ under the Social Security Act.’’ The ALJ indicated that ‘‘[p]ain is a symptom, not a medical diagnosis,’’ apparently suggesting that Dr. Masten had not provided a sufficient medical diagnosis regarding Plaintiff’s medical condition. However, there is no indication that the ALJ re-contacted Dr. Masten to request clarification or additional in- formation regarding the diagnosis. The ALJ has an ‘‘affirmative duty to develop the record and seek additional information from the treating physician, sua sponte, even if plaintiff is represented by counsel’’ to determine upon what in- formation the treating source was basing his opinions. 20 C.F.R. §§404.1512(e) (1), 416.912(e) (1). Failure to re-contact is error. Here, the ALJ screened out Plaintiff’s claim at Step Two in the face of an opinion from his treating physician that he was ‘‘severally disabled’’ and ‘‘very limited.’’ At a minimum, to the extent that the ALJ determined that Dr. Masten’s assessment was insufficiently supported by clinical findings or undermined by other evidence of record, the ALJ was obligated to re-contact Dr. Masten to request further information and clarification. This Court finds that a remand is warranted and that, on remand, the ALJ should re-contact Dr. Masten and request that he (1) provide further clarification regarding his diagnosis during the relevant period, and (2) either provide a residual functional capacity assessment with respect to the relevant period or explain why he chose not to perform such an assessment in the first instance. The ALJ should then re-evaluate whether Plaintiff satisfied the Step Two analysis in light of any additional information provided by Dr. Masten. ‘‘It is well settled that ‘a claimant’s subjective evidence of pain is entitled to great weight’ where . . . it is supported by objective medical evidence.’’ Where, as here, an ALJ rejects subjective testimony concerning pain and other symptoms, the ALJ ‘‘must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s disbelief and whether his determination is supported by substantial evidence.’’ In this case, Plaintiff testified that, during the period of alleged disability, he spent most of his time ‘‘laying down’’ because it would become difficult and painful to hold his head up after a small amount of exertion. He was able to perform very basic activities of daily living, but did not perform any household chores. Plaintiff testified that he was only able to lift light objects and needed help grocery shopping. He indicated that he was able to sit or stand for an hour and that any physical exertion in- creased his pain.

Antonson v. Astrue Case u 99 The ALJ discounted Plaintiff’s testimony, noting that one of his previous treating physician’s indicated the possibility that Plaintiff was ‘‘doctor shopping’’ and that his complaints might contain ‘‘an element of malingering.’’ However, Plaintiff’s testimony is certainly consistent with Dr. Masten’s assessment that he was ‘‘severally disabled.’’ Further, the State Agency review doctor noted that Plaintiff had indicated an ability to walk only one mile before needing a rest and stated that he experienced pain upon lifting more than ten pounds or standing more than thirty minutes. The State Agency doctor opined that, based upon the totality of the evidence, ‘‘those statements are . . . credible.’’ On remand, the ALJ should revisit his credibility assessment in light of the information obtained upon re-contacting Plaintiff’s treating medical providers. Dr. Tabrizi, Plaintiff’s treating psychiatrist, opined that Plaintiff had an ‘‘[e] xtended impairment in functioning due to mental illness’’ and diagnosed an Axis I 296.33 mental illness (Major Depressive Disorder, Recurrent) and generalized anxiety disorder. The ALJ concluded that Plaintiff’s mental impairment was not severe, noting that Dr. Tabrizi’s assessment was (1) not supported by clinical notes or findings and (2) contradicted by the assessment of the consultative psychiatric examiner. However, ‘‘ . . . an ALJ cannot simply discount a treating physician’s opinion based on a lack of clinical findings that accompany that opinion.’’ ‘‘[A] treating physician’s failure to include objective support for the findings in his report does not mean that such support does not exist; he might not have provided this information in the report because he did not know that the ALJ would consider it critical to the disposition of the case.’’ Under the circumstances, the ALJ had an obligation to re-contact Dr. Tabrizi to request further information regarding the clinical basis for his diagnosis. Second, although Dr. Shapiro opined that the results of her consultative examination ‘‘do not appear to be consistent with any psychiatric problems that would significantly interfere with [Plaintiff’s] ability to function on a daily basis,’’ she was not a treating source. Before accepting the assessment of a consultative examiner over that of Plaintiff’s treating provider, the ALJ had an affirmative obligation to more fully develop the record. On remand, the ALJ should re-contact Dr. Tabrizi and request any clinical notes or findings related to the period of alleged disability and/or a further explanation from Dr.

Tabrisi regarding his diagnosis. ‘‘Section 405 (g) provides district courts with the authority to affirm, re- verse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.’’’ Remand is ‘‘appropriate where, due to inconsistencies in the medical evidence and/or significant gaps in the record, further findings would . . . plainly help to assure the proper disposition of [a] claim.’’ Given the deficiencies in the record . . . it is recommended that the case be remanded. 100 u Chapter 4. Social Security ACROSS 4. Issued to obtain evidence or testimony 5. Benefits may be reduced because of receipt of government 7. WEP = Windfall Provision 8. Relevant to retirement and disability 10. Workers have a separate program, not administered by SSA 12. Health insurance for aged and disabled 13. Initials, sometimes used to describe social security system 14. Initials, ALJ is from this office 15. Determines eligibility for disability benefits of work 16. court hears social security appeals 21. Usual first step to challenge initial determination 22. ALJ = Law Judge Crossword Puzzle u 101 DOWN 1. work test, relevant to eligibility for disability benefits 2. Agreement with another country 3. Appeals , located in Virginia 6. SSI = Security Income 9. SSA = Social Administration 11. Initials, payroll tax 12. Grants to states for medical assistance programs 17. Initials, program that provides benefits without regard to contribution 18. Initials, since 1984 covers federal workers 19. AWI = Average Index 20. Initials, average of highest 35 years 102 u Chapter 4. Social Security 5 uuu Medical Matters uuu What Is Geriatric Medicine?

HIPAA Medical Team Effects of Recent Changes in Health Law on Senior Clients Senior Citizen Medical Issues Conditions of the Mind Medical Treatment Issues Care Issues Glossary of Medical Terminology Objectives When you complete this chapter, you will: . Understand how the practice of geriatric medicine differs from the practice of general medicine. . Know the effects of recent health law reforms on senior clients. . Identify the medical issues most problematic for seniors and know the terminology associated with those issues. As discussed in Chapter 1, the communication necessary to be a good advocate for a senior client requires understanding of the client’s physical condition and the unique risks and challenges faced by the client. A paralegal working on behalf 103 of seniors may have to communicate with medical caregivers and must have some knowledge of the issues and terminology that are part of that role. A thorough discussion of medical issues is beyond the scope of this book, and this informa- tion is intended only as a starting point.

What Is Geriatric Medicine?

Most elder patients receive primary care from internists or family practitioners and are referred to specialists as needed, but most members of these medical teams have no special training in geriatrics, the study of diseases and conditions related to aging. While many senior citizens thrive with that care and do not have major problems particularly associated with aging, others have problems that require specialized care. Many medical schools now offer specialties in ger- iatrics (see Exhibit 5.1). EXHIBIT 5.1 Medical Specialty Rankings, 2010: Geriatrics 1 1 Johns Hopkins University Baltimore, MD 2 Mount Sinai School of Medicine New York, NY 3 University of California Los Angeles (Geffen) Los Angeles, CA 4 Duke University Durham, NC 5 University of Michigan Ann Arbor Ann Arbor, MI 6 University of Washington Seattle, WA 7 Harvard University Boston, MA 8 University of Pittsburgh Pittsburgh, PA 9 Yale University New Haven, CT 10 University of California San Francisco San Francisco, CA 1http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-medical-schools/ geriatrics Geriatrics Medical specialty concernedwith problems of aging 104 u Chapter 5. Medical Matters At these schools, doctors learn about the social, housing, and emotional issues associated with aging, in addition to the medical conditions to which older people are especially susceptible. For example, the Mayo Clinic Geriatrics Fel- lowship within the Department of Internal Medicine is described as follows: The first year will have the traditional strong clinical emphasis. Longitudinal clinical experiences include a weekly geriatric continuity clinic, bi-weekly skilled nursing facility visits, and a monthly home visit program performing physician referred geriatric consultations and county social service referred comprehensive geriatric assessments. Hospital-based rotations include physical medicine and rehabilitation, geropsychiatry, geriatric medical orthopedics, geriatric acute care, hospice and palliative care, primary care internal medicine and geriatrics, and subacute care.

Outpatient rotations include clinics in physical medicine and rehabilitation, urogynecology, wound care, dementia, Parkinson’s and movement disorders, Dementia Behaviors Assessment and Response Team, congestive heart failure, and podiatry. Electives are available in sleep disorders, endocrine diseases, GI motility, and others. HIPAA A client or caregiver may provide information about the client’s health status and concerns, but if you need to obtain medical records, you need to understand the privacy protections that limit access to those records. The privacy rule, imple- mented under the Health Insurance Portability and Accountability Act ( HIPAA ), 42 U.S.C. §1320d, protects certain information against disclosure by health care providers, health care organizations, and insurance plans. Protected information includes anything that identifies the individual and relates to the individual’s past, present, or future physical or mental health or condition; pro- vision of health care to the individual; or past, present, or future payment for the provision of health care to the individual. The rule is complex and contains various exceptions, including an exception to allow disclosure to the authorized represen- tative of the individual, which makes written designation of a health care proxy essential. The rule is enforced by the Office of Civil Rights, within the U.S. De- partment of Health and Human Services, and more information is available at http:// www.hhs.gov/ocr/privacy/hipaa/understanding/summary/privacysummary.pdf . Medical Team A team approach to senior health care can involve a wide range of professional and nonprofessional workers. The members of the team differ in education, level of contact with the patient, and levels and areas of responsibility. Effective communication requires understanding. Of course, the list that follows is far from comprehensive and does not include important team members who often work behind the scenes, such as lab workers, medical imaging specialists, and HIPAA Health Insurance Portability and Accountability Act, containsprivacy law Medical Team u 105 phlebotomists. It also does not include people such as social workers and hospital discharge counselors, who are not trained in medicine but are essential to quality care. The American Medical Association lists information about more than 80 health care careers.

Chiropractor A chiropractor, also known as a doctor of chiropractic or chiro- practic physician, can diagnose and treat patients with health problems of the musculoskeletal system and treat the effects of those problems on the nervous system and on general health. Most state licensing boards require at least two years of undergraduate education, but an increasing number are requiring a bachelor’s degree. All boards require the completion of a four-year program at an accredited chiropractic college leading to the Doctor of Chiropractic degree.

Community Health Worker/Health Educator These terms are used to describe a variety of individuals who play a role in solving health care problems by pro- viding information, advocacy, and education. For example, a community health worker might educate underserved minority community members about the importance of health screenings, such as mammograms. The role is not defined by any particular education or license.

Dentist A general dentist (DMD or DDS) is licensed by the state as a primary care professional for patients in all age groups; there is no recognized geriatric dental specialty, although a number of dental problems are associated with aging.

Despite a strong link between dental health and general health and even emo- tional health, many senior citizens do not get the dental care they need. The reason is often cost — it is estimated that only about 20 percent of older people have dental insurance. 2 Mental Health Professionals Training and regulation of individuals who pro- vide mental health services varies widely. Psychiatrists are physicians (medical doctors) who complete a residency in psychiatry. Clinical psychologists are not medical doctors but have advanced degrees in clinical psychology and have served clinical internships. Individual states also set standards for licensed clinical social workers, psychiatric nurse specialists, and other licensed counselors, such as substance abuse counselors, marital and family counselors, and pastoral counse- lors. Whether individuals in each category can write prescriptions is a matter of state law.

Nurses An Advanced Practice Nurse (APN) is an RN (described below) with a post-baccalaureate education, and may be authorized by state law to perform additional functions independent of a physician, such as writing prescriptions. An APN may be a nurse practitioner (NP), clinical nurse specialist (CNS), certified nurse-midwife (CNM), or certified registered nurse anesthetist (CRNA). Registered nurses (RN) may be educated at the diploma (hospital-based), associate, or bachelor’s degree level. Today, most RNs are prepared through associate and baccalaureate degree programs. Upon graduation, all nurses must 2http://www.kronkosky.org/research/Research_Briefs/Dental%20Care%20and%20the%20Elderly% 20March%202009.pdf 106 u Chapter 5. Medical Matters pass a national licensing examination, known as the National Council Licensing Examination, to obtain a state license. Vocational or licensed practical nurses (LPN) usually receive up to 12 months of basic nursing skills training and practice under the supervision of a registered nurse or physician. As indicated by the title, an LPN must take a test and obtain a state license.

Nutritionist A Registered Dietitian (RD) or nutritionist is trained in nutrition science and generally has a minimum of a bachelor’s degree in food and nutrition from an accredited university. Most states regulate the profession by requiring a license or certification.

Pharmacists Pharmacists dispense drugs and medications prescribed by physi- cians, physician assistants, nurse practitioners, and dentists and advise health care professionals and patients on the use and proper dosage of medications, as well as expected side effects and interactions with other prescription and nonprescription medicines. All states license pharmacists and require at least a bachelor’s degree from an accredited school of pharmacy.

Physician (MD) Physicians obtain their MD (medical doctor) degrees by at- tending medical school, typically for four years, after obtaining a bachelor’s de- gree. After graduation from medical school, physicians enroll in intensive postgraduate residency training in a particular specialty, which lasts at least three years. Licensure to practice medicine is regulated by each state. Board certifica- tion in a specialty is an elective process that requires a minimum number of years of residency in the specialty and successful completion of oral and/or written examinations.

Physician Assistant (PA) Physician Assistants should not be confused with other medical office assistants, who may perform clerical work or routine clinical tasks. A PA practices medicine with the supervision of a licensed physician and may even write prescriptions. A typical PA has a bachelor’s degree and more than four years of health care experience prior to admission to a two-year PA program.

After graduation, PAs must pass a national certifying examination and are li- censed by the states in which they practice. Board certification examinations are available in Primary Care and Surgery.

Podiatrist Podiatrists, specialists in foot care, must be licensed, which requires three to four years of undergraduate education, completion of a four-year po- diatric college program, and passing scores on national and state examinations.

Therapists Physical therapists, occupational therapists, speech and language therapists, art or music therapists, and even pet therapists can contribute to the well-being of an older patient. All states regulate the practice of physical therapy and the practice of occupational therapy, usually requiring a post-baccalaureate degree from an accredited program and a passing score on an examination.

Medical Team u 107 Physical therapists provide care to people of all ages who have functional problems resulting from, for example, back and neck injuries, sprains/strains and fractures, arthritis, burns, amputations, stroke, multiple sclerosis, conditions such as cerebral palsy and spina bifida, and injuries related to work and sports. Physical therapist assistants work under the direction and supervision of a physical ther- apist. Physical therapists evaluate and diagnose movement dysfunction and use interventions to treat patients. Interventions may include therapeutic exercise, functional training, manual therapy techniques, assistive and adaptive devices and equipment, and physical agents and electrotherapeutic modalities. Occupational therapists help patients improve their ability to perform tasks in living and working environments. They work with individuals who suffer from a mentally, physically, developmentally, or emotionally disabling condition.

Occupational therapists help clients to perform all types of activities, from using a computer to caring for daily needs such as dressing, cooking, and eating. Physical exercises may be used to increase strength and dexterity, while other activities may be chosen to improve visual acuity or the ability to discern patterns. For example, a client with short-term memory loss might be encouraged to make lists to aid recall, and a person with coordination problems might be assigned exer- cises to improve hand-eye coordination. Occupational therapists also use com- puter programs to help clients improve decision-making, abstract-reasoning, problem-solving, and perceptual skills, as well as memory, sequencing, and co- ordination — all of which are important for independent living. Recreational, music, art, and pet therapists are not regulated in most states, and they use a variety of techniques, including arts and crafts, animals, sports, games, dance and movement, drama, music, and community outings, to improve and maintain the physical, mental, and emotional well-being of their clients.

Therapists help individuals reduce depression, stress, and anxiety; recover basic motor functioning and reasoning abilities; build confidence; and socialize effec- tively so that they can enjoy greater independence and reduce or eliminate the effects of their illness or disability. In addition, therapists help people with dis- abilities integrate into the community by teaching them how to use community resources and recreational activities.

Vision Optometrists, also known as doctors of optometry, or ODs, are the main providers of vision care. They examine people’s eyes to diagnose vision problems, such as nearsightedness and farsightedness, and they test patients’ depth and color perception and ability to focus and coordinate the eyes. Optom- etrists may prescribe eyeglasses or contact lenses, or they may provide other treatments, such as vision therapy or low-vision rehabilitation. Ophthalmologists are physicians who perform eye surgery, as well as diagnose and treat eye diseases and injuries. Like optometrists, they also examine eyes and prescribe eyeglasses and contact lenses. Dispensing opticians fit and adjust eyeglasses and, in some states, may fit contact lenses according to prescriptions written by ophthalmol- ogists or optometrists. 108 u Chapter 5. Medical Matters Effects of Recent Changes in Health Law on Senior Clients As a student you are probably aware that the 2010 health reform law provides an option for young adults to stay on their parents’ health plans, requires most people to buy insurance, and provides subsidies for those who cannot afford coverage, and calls for states to establish insurance pools (called ‘‘exchanges’’) for people with pre-existing medical conditions, the unemployed, and others who otherwise cannot obtain insurance. But several lesser-known provisions may have an impact on elder clients. The full text of the law (more than 900 pages), the Patient Protection and Affordable Care Act, has not been codified as of this writing and can be found at http://thomas.loc.gov . While benefits available under traditional Medicare (discussed in Chapter 6) are not cut, the law does phase in cuts in payments to Medicare Advantage programs, which may result in elimination of some of the additional benefits seniors have gotten through those programs. The law also schedules reductions in payments for home health care and to hospitals. On the other hand, Medicare will begin to pay for annual wellness benefits, and the existing prescription drug program has been overhauled to eliminate a gap in coverage that has been known as the ‘‘donut hole.’’ The legislation establishes an Independent Payment Advisory Board to submit legislative proposals to reduce Medicare spending if that spending grows in excess of the growth rate under Consumer Price Index measures for a five-year period that ends in 2013. The law prohibits the board from submitting any idea that would ration care, raise taxes, or change benefits. The Department of Health and Human Services is to establish a new office to coordinate the care of ‘‘dual eligibles’’ — individuals who qualify for both Medicare and Medicaid, many of whom are poor elderly. The law creates a program to help employers handle the cost of health care for retirees age 55 and older who are not eligible for Medicare. The reimburse- ments will cover 80 percent of medical claims between $15,000 and $90,000 for retirees, their spouses, and dependents until the state insurance exchanges are in place in 2014. The new law makes a number of changes that will have an impact on people of all ages. Most of these are intended to change the way we approach medicine, and encourage prevention rather than repeated treatment after the fact. Some of these changes will take time to implement and even longer to produce results. . A new federal Patient-Centered Outcomes Research Institute will provide funding for studies to help doctors make more-informed decisions to eliminate unnecessary medical care and tests and provide care that has been shown to be effective. . The law promotes ‘‘team care’’ that may include nurse practitioners, care managers, and nutritionists, depending on individual health needs. . The law promotes preventative care and encourages screening. It elim- inates copayments and deductibles on certain preventative services, such as immunizations, mammograms, and cholesterol testing, and provides doctors and care teams with financial incentives to keep people well. Effects of Recent Changes in Health Law on Senior Clients u 109 . The law promotes efficient use of technology. Doctors will be expected to exchange paper charts for electronic medical records, to improve the accu- racy of information in those records, and to make sure the records are ac- cessible to the patient and the professionals participating in the patient’s care. . The Food and Drug Administration is authorized to approve lower-cost versions of biologic drugs, also called biosimilars or follow-on biolo- gics — after drugmakers have 12 years of market exclusivity. . Insurers will have to justify premium increases to the federal government and state insurance commissioners. . In 2014, Medicaid, the state-federal program for the poor, will expand to include everyone who makes less than 133 percent of the poverty line ($14,400 in 2010 for individuals). Currently, most poor people without children aren’t covered; states can expand their Medicaid programs to cover these people immediately and get federal aid to do so until the state insurance exchanges are in place in 2014. Senior Citizen Medical Issues In their book, Taking Charge: Good Medical Care for the Elderly and How to Get It ,3attorney Jeanne Hannah and Dr. Joseph Friedman, MD, identify several common, preventable medical problems for the elderly: delirium, medication errors and adverse drug reactions, dehydration and malnutrition, and falls. This book discusses these issues as conditions of the mind, medical treatment issues, and care issues, including falls and other accidents. All of these problems can arise in the home, where well-intentioned care- givers fail to recognize potential problems or fail to act on them. Unfortunately, they can also arise in even the most expensive professional care settings.

According to the New York Times ,4in 2008: More than 90 percent of nursing homes were cited for violations of federal health and safety standards last year, and for-profit homes were more likely to have problems than other types of nursing homes, federal investigators say in a report issued on Monday. About 17 percent of nursing homes had deficiencies that caused ‘‘actual harm or immediate jeopardy’’ to patients, said the report, by Daniel R.

Levinson, the inspector general of the Department of Health and Human Services.

Problems included infected bedsores, medication mix-ups, poor nutrition, and abuse and neglect of patients. Inspectors received 37,150 complaints about conditions in nursing homes last year, and they substantiated 39 percent of them, the report said.

About one-fifth of the complaints verified by federal and state authorities involved the abuse or neglect of patients. About two-thirds of nursing homes are owned by for-profit companies, while 27 percent are owned by nonprofit organizations and 6 percent by government entities, the report said. The inspector general said 94 percent of for-profit nursing homes were cited for deficiencies last year, compared with 88 percent of nonprofit homes and 91 percent of government homes. 32006, Old Mission Press4Robert Pear, Sept. 30, 2008 110 u Chapter 5. Medical Matters Conditions of the Mind A patient’s medical care may suffer because the patient is unable to communicate symptoms due to a cond