Alzheimer's and the Law: Counseling Clients with Dementia and Their Families

by Rick L. Law, Kerry Peck

Overview

^{Alzheimer's disease is a form of dementia characterized by the loss of memory and other intellectual abilities to the point that the disease interferes with daily life. About 4-5 million people in the United States have some degree of dementia, and Alzheimer's is the most common form. There are many legal questions that need to be addressed following a diagnosis of dementia; financial questions, health care concerns, and ethical questions and lawyers need to understand both the law and the emotions of working with a client who has Alzheimer's disease. These questions include the following:}

 

• ^{How do we get health care for the patient?}
• ^{What are the ethics of working with clients with Alzheimer's?}
• ^{What options are available for health care?}
• ^{How are these options going to affect the patient and the family/spouse?}
• ^{What is the long-term outlook for everyone?}
• ^{How can we protect the family assets?}

^{Most attorneys are not accustomed to dealing with a client with Alzheimer's and probably are not prepared to answer these types of questions. Alzheimer's and the Practice of Law is designed to give you the knowledge needed to answer these questions and guide your client through the arduous journey of dealing with dementia. Including interviews with doctors, a hospice nurse, and the leaders of the Alzheimer's Association, this handbook examines this disease and unique practice from every important angle.}

Product Details

ISBN-13:	9781627222402
Publisher:	American Bar Association
Publication date:	06/10/2014
Edition description:	New Edition
Pages:	364
Product dimensions:	6.00(w) x 8.90(h) x 1.10(d)

About the Author

Rick L. Law, attorney, has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous other newspapers and articles. He is the lead attorney for Law ElderLaw, LLP, which serves seniors and those who love them in the Chicago metropolitan area. Leading Lawyer Magazine has consistently ranked him as a top elder law estate planner. He has been a featured presenter at national conferences of the National Academy of Elder Law Attorneys (NAELA) and at numerous professional and public seminars throughout Illinois. Rick would prefer that you know that his favorite things in life are being a husband, a father, and a grandfather. A perfect day includes a combination of being with children and horses.

Kerry R. Peck, managing partner of the Chicago law firm of PECK BLOOM, LLC, is a vigilant advocate for adults and families that may be victims of financial exploitation. He concentrates his practice in the following areas: trust/estate probate litigation, will contests, probate administration, elder law, estate planning, and guardianship litigation. He is also licensed to practice law in Florida. Kerry’s clients include families, hospitals, banks, the State of Illinois, County of Cook and City of Chicago. Kerry is the past president of the 22,000 member Chicago Bar Association and he has been selected by Illinois attorneys as a “Super Lawyer” in trusts and estates. Kerry was also selected in a statewide survey as a top lawyer in Elder Law and was named a member of the Leading Lawyers Network.

In 2004, Kerry was retained by the City of Chicago, Department on Aging and named Special Assistant Corporate Counsel for the City of Chicago.  His assignment was to revise the State of Illinois Elder Abuse and Neglect Act Statutes and shepherd the proposed statutes through the Illinois Legislature. Kerry was asked to testify and to line up other witnesses for the anticipated legislative hearings. This major legislative project was an acknowledgment of his leadership in the Elder Law Community.

In 2013, Kerry Peck co-authored the book Alzheimer’s and the Law, published by the American Bar Association. The book is geared toward attorneys counseling their clients with dementia and their families as they navigate the legal system. 

Mr. Peck is the recipient of the 2014 Justice John Paul Stevens Award, the Chicago Bar Association’s highest honor. He was also selected by IIT Chicago-Kent College of Law as one of their 125 Alumni of Distinction.

Table of Contents

Foreword v

Acknowledgments xv

Introduction xix

Expert View: I Have Become My Wife's Parent xxiii

Chapter 1 What is Alzheimer's Disease? 1

The Alzheimer's Journey 2

Memory Loss Ignored 4

Memory Loss Masked/Denied 6

Unsafe Alone 8

Aid Needed, But Fights Back 10

Assisted Living 11

Nursing Home 13

Hospice/Death 15

Statistical Projections 18

Expert View: Client Confabulation: The Attorney's Consternation 21

Chapter 2 Ethics and the Alzheimer's Client 25

Rule 1.14 26

Client-Lawyer Relationship 27

Rule 1.4 39

Client-Lawyer Relationship 39

Rule 1.6 40

Client-Lawyer Relationship 40

Rule 1.7 42

Client-Lawyer Relationship 42

Chapter 3 Life, Death, and Care Instructions 51

Advance Directives 53

What Can Happen Without an Advance Directive? 54

The Importance of an Advance Directive in the Context of Alzheimer's Disease 51

Living Wills 60

Both Federal and State Law Regulate Advance Directives 61

Power of Attorney 68

Powerful Versus Powerless Power of Attorney 69

Illinois 15

California 77

Florida 77

New York 79

Power of Attorney for Property (Financial Decisions) 80

Powerful or Powerless Power of Attorney for Property? 81

Do Not Resuscitate Order 84

Choosing an Agent 85

POLST 87

Appendix: Health-Care Power of Attorney and Combined Advance Directive Legislation 89

Expert View: Surprising Truths Within Hospice Care 144

Expert View: 10 Tips for Caregivers 147

Chapter 4 Special-Needs Trusts and Pooled Trusts 151

Trusts Background 155

Special-Needs Trusts 155

OBRA 93 157

Revocable Trusts 159

Irrevocable Trusts 159

D4A: Self-Settled Medicaid Payback Trust 160

D4B: Miller Trust 160

D4C: Charitable Pooled Trust 160

How to Take Care of the Spouse 164

Testamentary Trusts 164

Common Mistakes When Creating a Spousal Special-Needs Trust 167

How to Provide for an Adult Child with Disabilities 169

Non-Spouse Third-Party Trustor 172

Third-Party Trust Created for a Public Benefits Recipient 172

Third-Party Trust Created for Another Where the Grantor Seeks Public Benefits 172

Appendix A Declaration of Trust (Excerpt) 175

Appendix B Will of John Pourback 176

Expert View: The Marriage of Technology and Alzheimer's Caregiving: Staying Safely at Home Longer 182

Chapter 5 Government Benefits 185

Winning the Diagnosis Lottery 185

Medicare Versus Medicaid 187

Medicare 188

Hospital Insurance (Part A) 189

Medical Insurance (Part B) 191

Medicare Advantage Plans (Part C) 192

Medicare Prescription Drug Plans (Part D) 192

Medicare Policies 193

Medicaid 195

Eligibility 199

Principal Place of Residence 200

Spending Down 203

Caregiver Contracts 209

State Examples of Medicaid 212

Veterans Affairs Benefits 219

Non-Service-Connected Disability Pension 219

Income/Net Worth Requirements 221

Possible Medicaid Trap 222

DIC Benefits 222

Expert View: The Red Flag of Alzheimer's: A Change of Character 225

Chapter 6 Guardianships and Conservatorships 229

Guardianship to the Rescue 231

Guardian Defined 232

Current Estate Plan 235

Mental Capacity 235

Substituted Judgment Standard 236

Conflict 237

Types of Guardianships 238

Guardian of Person 239

Surrogate Decision Maker 240

Guardian of the Estate 240

Short-Term Guardian 241

Temporary Guardian 242

Limited Guardianship 246

Contested 252

Hearing 255

Reporting Requirements 258

Guardian of Person 258

Guardian of Estate 259

Termination/Removal of the Guardian 260

California 261

Florida 262

New York 265

Adult Guardianship and Protective Proceedings Jurisdiction Act 268

Divorce and Guardianship Issues for Individuals with Alzheimer's Disease 270

Illinois and the "Best Interests" Hearing 270

Expert View: Even Experienced Lawyers Make These Mistakes 278

Chapter 7 Financial Exploitation 283

Financial Exploitation 285

Forensic Accounting 291

Stranger Danger 292

Grandma Scam 293

Lottery Scam 294

Spoofing 294

Ruse Entry 295

Drive-By Contractors 295

Vulnerability 297

Wolf in Sheep's Clothing 301

Defenses Against Financial Exploitation 303

Probate/Citations 303

Fiduciary Relationship 307

Seniors Tolerate Lesser of Two Evils 309

Going Forward 310

Expert View: When the Indispensable Caregiver Is the Abuser 312

Chapter 8 Personal-Care Agreements and Nursing Home Contracts 315

Adult Children Providing Care 319

Perfect World Versus Real World 321

How to Draft a Powerful Personal-Care Agreement 323

Burden on Caretaker 327

Employment Taxes 329

The Invisible Opponents: The Backstory of Cultural and Religious Tradition, Judicial Bias, Elder Abuse Statutes, and the State Medicaid Department 330

Medicaid Issues with Personal Care Contracts 332

Avoiding the Hidden Traps of Nursing Home Contracts 331

Arbitration Clauses: The Bane of the Litigator and Clients 342

Residents' Rights 343

Patient Transfers/Discharges 345

Expert View: The Hope of Vanquishing Alzheimer's Disease 348

Glossary 351

Index 365