When “Happy” New Year Just Doesn’t Fit.

About a year ago, my partner Jessica wrote about the realities of working in an elder law practice. (See “A Less Shiny Year in Review.”) It seems to be a theme at the close of the year that for us, when others are wishing “Merry Christmas” or “Happy Holidays”  and “Happy New Year,” we spend our time thinking about the clients we work with, and the people we care about, who are not feeling happy or merry.

Maybe it is because this time of year is the busiest for us by far. And unfortunately, it is not “good busy.” It is busy because people who have spent time with aging parents at the holidays realize there has been a change for the worse, and need help figuring out what legal steps have to be taken. It is busy because people who (we anecdotally believe, based on years of the same thing happening over and over) hung on to see family one more time, have passed away. We get more calls this time of year than any other. Few of them bear good news for our clients. We are grateful that people choose us to guide them through some of the worst times of their lives, but we are never happy to get those calls.

As cards and gifts come in, and people wish “Happy Holidays!” we think of what those close to us through work or personal connection have had to face that may make them feel not merry, not happy. And we worry about how to let them know they are felt and respected in a season of celebration.

How do you say Happy New Year to someone who lost their wife of many years this year? Well, the answer is, you don’t. It won’t be happy. And maybe, saying goodbye to this year means letting go of the last year they spent with their loved one on this earth. And that is not something that makes them “happy.” Another letting go, when they didn’t want to let go in the first place.

How do you navigate the celebrations for a spouse spending their first holidays in a care facility? How do you talk about New Year’s resolutions with someone who is facing a terminal illness? It’s tempting to say nothing, because we are stumped for words. But that doesn’t work either. 

It’s a good time to say, “I’m thinking of you. This must be a difficult time to go through.” It’s a good time to say, “We would love it if you felt like joining us. Your grief is welcome too. We don’t expect you to feel like celebrating. And you don’t need to give us a firm answer. If it feels right at the moment, then we would love to see you.” It’s a good time to be flexible with the plans you make, to meet the needs of a grieving loved one. Scrap the party and head to their house with some takeout, just to be there. Let a grieving person know they are in your thoughts. It’s a good time to invite someone to chat about the person they lost. It’s a good time just to sit together. It’s a good time to accept and embrace their feelings, even if they are far from “merry.”

It’s a good time to allow someone to not be happy that they are not at home anymore. It’s a good time to be honest if the person says it is not the same. It’s not. When someone says they want to go home, it’s a good time not to dismiss that feeling. Talk about memories, favorite things, favorite times. What they miss. Maybe you miss it too. It’s ok to wish things were different from what they are.

Let people grieve. Let people cry. Cry with them. Hug them. Listen. Don’t expect happy. Don’t expect merry. Hope to give love, hope to give comfort. And silently wish peace and happiness for them in another year. We do, every year. 

What is a Revocable Trust and How Does it Work?

A revocable trust is a legal document that allows the grantor (the person who creates the trust) to transfer their personal assets to the ownership of the trust during their lifetime, or upon their death. The trust is called “revocable” because the grantor can change or cancel the trust at any time during their lifetime. A revocable trust can be created by a single person, a married couple, or non-married people acting together. 

Important Terms: “Grantor” – this is the person who creates the trust and puts assets into the trust. “Trustee” this is the person who manages the trust assets and is responsible for distributing them to the beneficiaries at some point. The trustee and the grantor are often the same person as long as the grantor is alive and not incapacitated. “Beneficiary” this is the person or persons, or organization, who benefit from the assets in the trust or who will ultimately receive them for themselves when the trust ends. More detail on these terms is in the following paragraphs.

The trust is managed by a trustee, who is selected by the grantor. In the revocable trust estate planning that we do in our office, typically the grantor acts as the trustee while they are alive, and the grantor also selects someone to act as trustee after the grantor’s death or incapacity. The trustee could also be a family member, a trusted individual outside of the family, or in complex cases involving larger trusts, a financial institution or professional trustee. The trustee is responsible for managing the assets in the trust and distributing them to the beneficiaries according to the grantor’s instructions.

Beneficiaries are the people or organizations who benefit from the trust. Normally during the life of the grantor, the grantor is the beneficiary. In other words, any assets in the trust are to be used for the benefit of the person or persons who created the trust. Putting the above three paragraphs all together, this means it is totally normal for the grantor, the trustee, and the beneficiary of a revocable trust to all be the same person – the person who is our client – at least while that person is alive.

The grantor will also select beneficiaries to receive assets after the grantor’s death, and these could be anyone the grantor chooses, whether people, organizations, charities, or even pets (with certain strings – or should we say leashes – attached.)

After the death of the grantor(s), the people or organizations designated in the trust to receive the assets may simply receive them outright, or may receive them in trust, where they continue to be managed by a trustee.  Holding assets in trust may be important where the beneficiary is a minor child, a grandchild, a person with a disability, or a person with creditors or money management concerns.

One of the primary benefits of a revocable trust is that it allows the grantor to avoid probate court, which is the legal process of distributing assets of a will through a court case. Probate can be a lengthy and expensive process, and it can also be a public process, which means that anyone can access the information about the estate. A revocable trust, on the other hand, is a private document, and the distribution of assets is handled outside of the court system. Importantly, in order to meet the goal of avoiding probate, all of the grantor’s assets need to be connected to the trust. While our office typically handles the real estate end of this process, it is normally “homework” for the grantor(s) to go to the bank and investment brokerage and change the accounts according to instructions we will give, so that they are connected to the trust. (We can help with that too if needed.) If this important homework is not done, a probate could still be needed to get the assets “into” the trust after the grantor dies. The way we explain this is: creating a trust without connecting your assets to it is like buying a very fancy chandelier but not connecting the electric wiring to it. It won’t work the way you wanted it to.   

Another benefit of a revocable trust is that it provides the grantor with more control over their assets. The grantor can specify how their assets should be distributed after their death, and they can also specify how their assets should be managed if they become incapacitated. This can be especially important for individuals who have complex family situations, minor children, children with disabilities, or who want to ensure that their assets are distributed in a specific way. 

However, there are also some disadvantages to a revocable trust. One of the main disadvantages is that it does not provide any tax benefits. Similarly, assets in a revocable trust are still counted as the assets of the grantor (s), if applying for Medicaid.  Additionally, the grantor is still required to have a will, which can be used to distribute any assets that were not transferred to the trust, or to deal with unplanned situations. For example, if the grantor dies as the result of an accident, it may be necessary to open a probate to pursue any claims related to that accident. 

Another disadvantage of a revocable trust is that it is more expensive to set up than a will. The grantor will need to transfer their assets to the trust, which can involve additional legal and administrative fees. That being said, the cost of probate – if a trust is not used – is typically more than the cost of setting up the trust in the first place. The difference is that in probate, the beneficiaries pay the costs since the person is already deceased. With a revocable trust, the grantor pays the costs of setting it up, thus saving costs for the beneficiaries down the road. 

Something that is a reality, but not a disadvantage, is that administering the trust does take time. Even though it is typically less “public” than a probate, after the death of the grantor, assets still need to be collected, bills paid, and then ultimately the remaining assets distributed (handed out) to the beneficiaries. This does take time and organization. Our firm can help with this process called “trust administration.”

Additionally, a trust is not just a “one and done” estate plan. The grantor may need to update the trust if their situation changes, or if they want to change the distribution of their assets. We typically recommend that our clients have their plans reviewed every five years, or sooner in the case of death, disability, or divorce. But this same thing is true of all estate plans. They should be regularly reviewed.  

If you have other questions, do not hesitate to schedule an appointment to discuss.  

A Less Shiny Year in Review

‘Tis the season for law firms far and wide to shout from the rooftops that they have had the most

successful, most productive, most award-winning year ever. And next year is set to be even more amazing. After all, isn’t that what you want out of the law firm and attorney you want to work with? For them to be the best firm ever? And only have good things happen?

We could write that blog post. We could include all the lawyer awards and designations that we consistently receive each year, talk about how business is booming, talk about all the seminars and publications we’ve completed, etc. etc.

The problem is, it totally misrepresents what it’s like to run a law firm based on elder law, special needs planning, and estate planning matters. And in a way, it does a disservice to our clients who do not feel like all is calm, all is bright.

In the interest of New Year’s resolutions for honesty and transparency, let’s talk about the things that were not wonderfully amazing in our legal practice this year.

Let’s jump right into the muck. This year we dealt with a lot of elder abuse cases. More than should exist. We worked to remove bad actors as powers of attorney, and we helped obtain adult-at-risk injunctions, and we even helped prevent elders from being kidnapped (it happens more than you think). We were successful at those things in terms of “winning the case”, yes. Would we call that an overall success? Turns out, there’s no way to undo someone being neglected or emotionally abused after the abuse has already taken place. Even if you can prove money was stolen, often there’s no way to get it back. The idea of turning back the clock would be the most successful outcome, and it’s simply not possible. You win the case, and you’re still disappointed.

We also spent a lot of time arguing over things we shouldn’t have had to argue about in the first place. It’s one thing to know how all the Medicaid laws work and what should happen when an application is submitted. It’s an entirely different thing when the application is then ignored, when paperwork is “lost,” when correspondence goes unanswered and eventually a perfectly acceptable Medicaid application is rejected for no valid reason. We’d venture most Medicaid attorneys will confirm, that is just how this year has been. Now, have we eventually obtained the correct outcomes? Yes. Have we even sometimes gotten our fees paid by the state for the unnecessary delays? Also, yes. But the stress on our clients having to wait for months just to confirm that their nursing home bill will be paid? Not wonderful. The time it takes for us to argue about things that should never be at issue? Not amazing.

The other thing is, working in this area of the law is so often just … difficult. Some problems don’t have a legal answer. You draft an estate plan for a client, you develop an attorney/client relationship where you hear all their hopes and dreams for their families and loved ones, and then they pass away out of nowhere, and you are charged with helping their families move forward. Some of these clients are your own family or friends or colleagues. Some clients, again sometimes your family and friends, come to see you because they have just been diagnosed with terrible things like dementia or cancer or whatever you can dream up. And you can’t unload that knowledge on anyone else due to ethical rules. Some clients are caregivers and no matter what they do, they cannot find the quality caregiving assistance they need to get a break from a very demanding and very thankless role. Many of your clients would rather be anywhere in the world than an attorney’s office. Attorneys by nature like to control things, and there are so, so many things we cannot control.  

Now, here’s the flip side of all of this. We really like the work we do. Really. It is hard in so many ways, but we enjoy our clients very much. We love the challenge of finding a solution for a seemingly un-solvable problem. Like everyone else in the world, we like winning when possible. And, we are honored when we are chosen to help guide clients through the most difficult situations in their lives, even if the outcomes are not always what we would like them to be.

We do experience some unqualified successes, not only in the office and in court, but also in our volunteer roles that we take very seriously. And not all of our cases are full of strife and stress. And sometimes, we get rewarded for the work we do. In fact, for all her commitments to community, mentoring, and encouraging other women, this year Atty. Wessels was awarded the Ruth Bader Ginsburg Notorious Servant Award by the Wisconsin Civil Justice Education Foundation. (Carol does not brag about herself often, so now you know who is writing this blog post. It’s hardly a lawyer blog post if someone isn’t bragging about something.)

In conclusion, it has been a year of decided triumphs and decided difficulties in our little law office. For many of our clients, the holiday season and promise of a new year does not necessarily equate with happiness and new beginnings. However, we remain optimistic and serious about continuing to grow as excellent advocates and counselors for our current and future clients in the upcoming year and beyond.

Therefore, without any adverbs or adjectives whatsoever, we will simply say: “It’s been a year.”

See you in the New Year.  

The Good and the Bad about “First Party” Special Needs Trusts

We work with a lot of clients with disabilities who are receiving public benefits like SSI, Medicaid, Family Care, and public housing. They have been referred to our office because they are about to receive some money. For example, perhaps a relative died and they were the beneficiary of a life insurance policy. Or possibly, they were in an accident and are getting funds from a personal injury settlement. In cases like these, while getting money is usually a very good thing, it can have a negative effect on the person’s eligibility for benefits. It is important to do what we can to to minimize any negative effects. Understanding the issues and rules takes special experience and so often, the original attorney handling your matter will refer you to a “special needs planning attorney” like Carol Wessels and Jessica Liebau in our office.

One of the things we think about is called a “special needs trust.” It is a special kind of trust that is set up with the person’s money. If it is done correctly, the money is not counted against the person as far as their eligibility for benefits. But there are some catches. Here is a quick summary of some of the main things to know:

1. Not all benefits are affected when you receive money, so it is important to know the options in your specific case.
2. A trust may not be the only option you have , so it is also important to talk with someone who can explain your options so you can make the choice that is best for you.
3. If you are acting on behalf of someone who cannot act for him or herself, you have to have the legal authority to do so.
4. A trust that is set up with money that belongs to the person on benefits is called a “first party” trust. A trust that is set up with money that does not belong to the person is not a first party trust. This article ONLY talks about first party trusts.
5. The two most common “first party” trusts are a privately drafted trust, where you can choose who will be the trustee, or a “pooled trust” which is run by a non-profit organization. With a “pooled trust” you open an account with the trust and the funds of many people are “pooled” together for investment purposes. They do keep track of your own account separately, however.
6. THE GOOD: With either type of “first party” special needs trusts, the best part is that the funds in the trust can be used for your needs, and that if done correctly, you do not lose your public benefits.
7. THE GOOD: Pooled trust accounts are very easy to set up, and so are privately drafted trusts. You just need to work with a lawyer who handles special needs planning. Even though the trusts themselves are complicated, your special needs planning lawyer will make your part easy.
8. The BAD: The first thing to know is that the trust is irrevocable. This means that once you put your money in it, you cannot change your mind and get it back out.
9. The BAD: When the funds are in the trust, you are not the final decision maker on how the funds are spent. A trustee is in charge of the trust, and it can’t be you. So you will need to work with the trustee to come up with a plan on how those funds will be used.
10. The BAD: In most cases, you cannot simply get cash out of the trust account. It is not like a bank account. You don’t just go and withdraw $20. In most cases, the funds cannot be given to you directly, rather they are sent to the places you need, such as paying your cell phone bill or your credit card or your gym membership. When the trust pays things for you, this is called a “distribution.”
11. The BAD: It usually takes more time to get a distribution to pay something than if you simply were writing a check out of your own account. You really need to plan ahead and be organized.
12. The BAD: there are some cases where the way the funds can be used is restricted. For example, if you are on SSI, chances are the funds in the trust cannot be used to pay your rent and certain other “shelter” expenses, since that would cause your SSI to be reduced. It is important to go through the things you want the trust to pay, when making your decisions. about whether the trust works for you.
13. The BAD: When you die, if there are funds left in the trust account, they do not go straight to the people you choose as beneficiaries. First, if you received any Medicaid during your life, the funds go to pay back Medicaid. (Or with a pooled trust they might go to a pool to benefit other people with disabilities.) ONLY if there is enough money in your trust to pay Medicaid AND have money left over, will your beneficiaries get anything.
14. The Bad: These cost money to administer. First, your lawyer will charge you to set the trust up. Second, there will be tax requirements that will require the use of a professional accountant, and third, a professional trustee will charge a fee. A pooled trust will most likely also charge a fee, since the funds are professionally managed, although some of them charge reduced fees based on the amount in the trust.

Normally, even though the list of the BAD is a lot longer than the list of the GOOD, the two GOOD things are REALLY GOOD. And as long as you learn to work within the limits of the trust rules, you can get a lot of benefit from having a trust. So all in all, the good outweighs the bad. But you need to think these things through and talk about them with your special needs planning lawyer. Let us know if you would like to talk!

“I Signed Up for WHAT?!” (A Note on Admission Contracts.)

Recently a client came to our office asking for assistance with qualifying dad for Medicaid. Dad is already in a long-term care facility, and he’s running out of money. This conversation generally went as follows:

“When can dad apply for Medicaid?”

“What does his admission agreement say?”

“His what?”

“The contract that was signed when he moved into his facility.”

“Oh yeah. I remember signing that.”

“You signed it, rather than dad?”

“Yes. I’m dad’s POA, and dad has dementia.”

“Did you read it before you signed it?”

“Kind of, not really. The facility told me I had to sign it to get dad in, so I did.”

“Can you provide me with a copy of it?”

“Sure, here it is.”

“Ok, this says you signed as a financially responsible party.”

“Yes, I’m his POA.”

“Yes, but this says you are personally guaranteeing the contract.”

“What does that mean?”

“It means that if dad runs out of money, the facility can come after your personal assets to pay for dad’s care.”

“WHAT?!”

“Unfortunately, yes.”

“Is that even legal?”

Our office has this conversation with clients, often. The answer to “is it legal?” may come down to how the facility is licensed.

If dad is in a skilled nursing facility (a “real” nursing home), those facilities are prohibited by federal law from requiring a personal guarantee from someone other than the resident. In particular, 42 CFR § 483.15(a)(3) says:

The facility must not request or require a third-party guarantee of payment to the facility as a condition of admission or expedited admission or continued stay in the facility. However, the facility may request a require a resident representative who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring financial liability, to provide facility payment form the resident’s income or resources.     

In simple terms, a skilled nursing facility cannot define a “responsible party” as someone who will use their own money to guarantee payment. The facility can have someone agree to help make sure dad’s assets are used to pay dad’s nursing home bill each month and serve as a contact person, just like a power of attorney agent might do.

Facilities will sometimes say, “well, we didn’t require it, but we can ask for it.” The law says the facility should not even be requesting it. If dad is in a skilled nursing facility, a third-party guarantor provision is illegal. That’s the good news.

If dad is in a “lesser” level of care, like assisted living, the answer is not so good. In Wisconsin, facilities might be licensed as a group home, or a community based residential facility (“CBRF”), or a residential care apartment complex (“RCAC”), for example. Regardless of the specific type of license, if dad is in one of these lower levels of care, and not a skilled-nursing facility, then the prohibition in 42 CFR § 483.15(a)(3) does not apply. This means if dad runs out of money and rings up a large bill before he passes away or is asked to leave, the guarantor can be held legally responsible for paying that debt from their own assets.

“Are you saying that because I signed the contract for dad’s assisted living, and I signed a third-party guarantor agreement, that I’m on the hook?”

“Quite possibly, yes.”

“Well, what now? Should I have dad move?”

“Does dad want to move?”

“No, he likes it there and I think the care is pretty good. And we’ve already privately paid for over a year. But I don’t want to lose my house when he runs out of money. Ugh, this is terrible.”

If the contract is not already in place, the obvious advice is to read it before it is signed and seek a legal opinion if at all unsure of what it says. All admissions agreements are not the same. They vary from facility to facility and contain all sorts of things that may or may not be problematic or enforceable. Reviewing it carefully before it is signed can avoid major issues later.

After the contract is in place, the options are different. Now, the important step is to make sure the facility has no reason to go after the third-party guarantor. The facility does this when they aren’t getting paid. Therefore, the crucial thing for the client to do is work with an experienced elder law attorney to help them understand (1) when dad is going to run out of money, (2) whether the facility accepts Medicaid and what that looks like (restrictions, change of room, etc.), and (3) how to make sure dad achieves Medicaid eligibility as soon as he’s out of money so that the third-party guarantor doesn’t end up stuck with an unpaid assisted living bill. Sometimes this is straightforward; sometimes it’s a jigsaw puzzle.   

Initial missteps do not automatically spell disaster. The name of the game is being as proactive as possible, no matter what stage of planning the client is at. And of course, always, always read the agreement before it is signed.

Getting your ducks in a row – Part one.

Awhile ago I wrote about the most important estate planning documents a person needs. You can read that article here. After it was published, it motivated some of our readers to make an appointment and get things done. Yet, when we are helping clients with estate planning, the truth is that some of them are simply not ready to deal with it yet. For those people, contemplating heady topics like death and disability needs to happen in very small increments. That is fine, just don’t die or become disabled until you have made your way through it.

For those of you in that phase, there are still important things you can do to feel like you are “taking charge” of your estate planning life. Here are five things that will help you start to get your ducks in a row:

1. Make a folder. I call this folder “WHEN I DIE” because it is not a matter of if, it is a matter of when. You could get a distinctive folder, or put fancy stickers on it, or every year on Dec. 31 you could write on the front “Not dead yet!” (A favorite movie of mine, Monty Python and the Holy Grail, has a very “gallows humor” type scene about this issue.) In this folder, start putting a copy of the account statements for the accounts and investments that you own. You can add in credit card statements, loan statements, income statements and other things relevant to what someone would need to take care of. You don’t need to do this every month, but make sure that you have a copy of a statement for every asset. If you own property, put a copy of the tax statement for the property in the folder. That way, when you die, whoever is handling your affairs will have a better idea of what you own and what you owe. You can also include other important things in the folder, like songs you might want played at your funeral, or poems, or a list of people who would want to know when you die. Once you do get your estate planning done, you can put this folder in with those documents. But for now, making it is a great first step.
2. Buy a safe. A safe is a good thing for everyone to have, since you can put important information in it, and it is likely to be fireproof and waterproof. Costco has a good selection of them and you do not need to be a member to buy many of their items online. Here is a link to a good one that I own. I like it because you can have a combination and a key. (Fire Resistant Safe from Costco). Once you have your safe, you can put important things in it, such as your “When I die” folder, and give the combination to someone you trust. At this point, you could also start making a list of important passwords to add to the “When I die” folder, since it will be in the safe. And, when you do decide to finish your estate planning, you will have a good place to put those documents. Tip: Save up those little “moisture absorbing” packets that come in shoe boxes and many other things, and throw them in the safe. That way it won’t smell so musty. The Costco version comes with one packet but more is better.
3. Make a list: you should have a list of the names, addresses, email and phone numbers of the people who are important to you, such as your children, friends, siblings, parents. These are people who at some point you may choose from to be your agents on your estate planning documents. When you get this done, put a copy in your “When I die” folder. You may want to capitalize on your momentum, and make a list of your assets. This is going even a step beyond the “When I die” folder, since it is actually accumulating the information on a list you can share with your estate planning attorney and certain others when you are ready. Here is a link to a form we give our clients to fill out. Information form for Estate Planning. You can put a copy of this in your “When I die” folder too.
4. Clean up: One of the best things you can do is to start getting rid of your junk. That way, if something unexpected happens to you, there is less of your stuff for someone to weed through. There are many resources to help you do this. My favorite is “The Gentle Art of Swedish Death Cleaning” For a recent birthday, I asked my son to death clean with me. We got rid of a LOT of stuff.
5. Talk. When it comes to health care decisions, which are another important part of estate planning, it is critical that the trusted people you will choose as your agents (when that momentous day comes that you do actually get your powers of attorney done) know how you feel about certain health care decisions that could come up. A website to help you get this started is called “The Conversation Project.” Here is a link: https://theconversationproject.org/

Now that you are on a roll, make an appointment with your lawyer. Get it on the books. It doesn’t mean you need to get everything done, but you owe it to yourself to talk about this, and consider your estate planning options. Consider it an “informational” session. In my firm, we are not high pressure when it comes to something like this. We know that estate planning – at its best – is not a cookie cutter business where we funnel you through a seminar into a high-pressure meeting. We are happy to have you come in to talk, and take time to think about it. Just don’t take too much time, since we have unfortunately had people die before their estate planning was done, and the documents are not effective until they are final. You also might want to get a pricing idea, since good estate planning will be a financial investment. The initial appointment can help you understand the costs of different options, and the costs of doing nothing. Hint: the costs of doing nothing are always higher. Guardianship and probate proceedings are court cases where lawyers and court fees are involved.

ROUND TWO: When “protection” goes wrong…financial exploitation bills introduced in Wisconsin go too far and need to be changed, not passed into law.

The bills I wrote about last September have reared their ugly head again. Thankfully, the bills went nowhere last year. But they are on the table again. This is a refresh of my original article with updated bill numbers. 

Sometimes, protection goes too far. That is what is happening in Wisconsin right now. Two bills were introduced in the Wisconsin Legislature yesterday. These bills purport to protect seniors from financial abuse. They are SB 19 (AB 46) and SB 20 (AB 45). However, the way they are currently written, in the guise of protecting seniors from financial abuse, these bills throw a competent person’s right to control their own finances under the bus.

SB 20/AB 45 (text here) relates to securities industries professionals. These are your financial advisors and investment brokers. Your Edward Jones, Thrivent, Morgan Stanley officers to name a few, as well as the smaller private brokers that you have trusted with your investments.  These are the people that hold your really big funds.

SB 19 / AB 46 (text here) related to financial institutions. This is your bank, big and small, local or national, your mortgage lender, or your credit union.

Both of these bills allow your financial provider to be a voluntary reporter of elder abuse. In other words, your banker can make a report to your local adult protective services agency if he or she suspects that something in your account may be financial abuse. I don’t really have a problem with that part (with the caveat, of course, that you should be able to opt out of this and prevent your financial information from being disclosed at all.) But there’s more. Some of the concerns are below, but these are just a few. If you would like a detailed explanation of  the concerns about each of these bills, click here.

If you are 60, you are vulnerable. First, let’s start with how the bills define a “vulnerable adult.” This is the person to whom these new procedures could be applied. A “vulnerable adult” in both bills is defined as anyone who is 60 or older!  Now, I work with a lot of people who are in their 60s, on issues like estate planning, guardianship of a special needs child, or elder law concerns regarding their older parents. My husband is 62. I can tell you, he is anything but vulnerable. Bill Gates is 64. Hmmm. Is he vulnerable?

How about Oprah? She is 65. She must be really vulnerable at that age (just kidding, Oprah.) She isn’t. Bill Gates isn’t, and my husband isn’t. Neither are the people I work with who are in their 60s, barring a diagnosis of early onset dementia or some type of illness affecting their cognition. But all of them could have their account transactions frozen under these two bills.

Having a standard age, especially one as young as this, without some objective evidence that the person is actually unable to care for their own financial matters, or is truly vulnerable to exploitation or influence, is a real insult to the autonomy of most individuals. It is ageist. Even if the standard age were 90, it’s time to recognize that age alone is not a sign of vulnerability. I have 90+ year old clients who are “sharp as a tack.”

It would be far better to use the definition in Wisconsin’s protective services law, which is not tied to age: “any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”

Account transactions can be frozen for long periods of time: Both bills allow the financial institution or investment professional to freeze a transaction on your account if the institution or advisor has “reasonable cause” to believe that financial exploitation is occurring, has occurred or may occur.  This means, without your consent, a transaction could be dishonored or stopped for a period of time. In SB 20, the “initial” period of the freeze is 15 days and can extend to 25 days. In SB 19, it is 5 days, but can be extended indefinitely. While these freezes are in place, you are potentially incurring bounced check fees, late fees or other penalties, none of which are required to be waived or paid by the institution.

Reasonable cause is not defined: These bills allow a transaction to be frozen if the provider has “reasonable cause” to believe that financial exploitation has occurred, is occurring or is about to occur. However, there is no definition for “reasonable cause.” It is whatever the banker or financial advisor says it is.

Hmmmm what is reasonable cause?

The bills could be improved by adding clear definitions of “reasonable cause” and requiring that the facts be documented in writing.

What is even worse, is that neither bill requires the financial services provider to receive any training regarding financial abuse or elder abuse.  So now, untrained individuals are making judgment calls on an undefined standard, and exercising control over your money.

You can’t get out of it: There is no provision in either bill for you, as a customer, to knowingly “opt out” of this “protection” or better yet, to knowingly “opt-in.”   In a free country, a person should be able to decline the “protections” that the government wants to impose, particularly on the person’s hard earned finances.

Your power of attorney can be disregarded: SB 19 eliminates protections that were put into Wisconsin’s financial power of attorney law. The bill allows a financial institution to disregard your durable power of attorney (DPOA) if they believe your agent is perpetrating financial abuse.  The ability of banks to refuse DPOAs is exactly what Wis. Stat. § 244.20 — the statutory prohibition on refusing a power of attorney —  was intended to remedy after a long history of financial institutions refusing to accept powers of attorney for inappropriate reasons, such as the fact that the documents was not on the bank’s preferred form or was more than 6 months old. § 244.20 was the product of hard work by elder law attorneys in Wisconsin and protects individuals against arbitrary refusal of a properly drafted power of attorney. Proposed § 224.46(4) does an end run around the protections of this section.

No Liability for Mistakes: Both bills relieve the financial institutions of any liability if they act in good faith and with reasonable care under these provisions. You may suffer considerable financial damage if the institution acts in error, but you have no recourse. Also, it is not clear who will be stuck with all the bounced check charges, later fees and other consequences that would come from an error in delaying a transaction. Worse yet, if the customer (or his or her agent)  is in the middle of applying for Medicaid, the application could be denied if funds are not distributed (“spent down”  in a timely fashion, costing tens of thousands of dollars.

I’m not blind to the issue of financial exploitation of vulnerable adults. In fact, I am very well acquainted with issues relating to elder abuse.  Years ago, as the director of a non-profit program serving elders, I obtained one of the first grants from the State of Wisconsin to provide legal services to victims of elder abuse. I have trained professionals on Wisconsin’s Elder Abuse laws, and have trained attorneys on how to represent victims of elder abuse. My firm represents victims of financial exploitation. These are terrible cases. However, two wrongs don’t make a right. Curtailing the rights of individuals to handle their own finances, making their carefully drafted powers of attorney worthless, and relieving financial institutions from all liability create problems that could be even worse.

Call to action: You have the power to let your Wisconsin legislator know that these bills cannot be passed the way they are currently written. With some improvements, they could provide a real benefit. As currently written, the potential to harm individuals who are competently going about their own business with their finances is too high. You need to act quickly, so call or write today. Contact information to find your legislator is here: https://legis.wisconsin.gov/ simply write your address in the space on the right side of the page underneath the heading “WHO ARE MY LEGISLATORS?”  Tell them you OPPOSE SB 19/AB 46 and SB 20/AB 45

In a Wiser 2021, Make Sure to Control What You Can.

On New Year’s Eve, my husband and I looked on with relief as 2020 left the stage. I would venture that so did many of you.

Over the course of a lifetime, I can remember more than one year where I was not at all sad to see it go. But those other years were more of an individual experience. It was related to one or more things that were personal to me, like the loss of a loved one or a difficult personal challenge. We all have had those years.

Bidding goodbye to 2020 with relief was a collective experience of our society as a whole. But let’s be honest: 2021 is not going to be a walk in the park either. We know that. And that is precisely the difference. On New Year’s Day in 2020, few of us would have predicted the terrible health crisis that was – even then –  moving along on its course of destruction. But on New Year’s Day 2021, we know what we are facing. If not every detail, we certainly have a good idea. This pandemic is far from over and will continue well into the year.

Much of 2020 was spent in the “pivot.” We went from what we were used to, to what we were not used to but had to adapt to. We all did the best we could.

What we learned at Wessels & Liebau: At our office, the “pivot” helped us deliver services more effectively to our clients and we will continue many of these things forever. We learned how to hold client meetings by video. This has been a godsend to many caregivers for loved ones with dementia. Instead of having to find time to get to the lawyer’s office and find care for your loved one, or bring them along with the stress that involves for them, it is now quite simple to have the same conversations over video conferencing, with less stress. I have had more than one client say how nice it was not to have to worry about traffic or feel the need to get dressed for business. We “met” with some clients while they were at their cottages! We miss what everyone misses in this time, the opportunity to meet over a cup of coffee, shake hands, and visit in person. We do feel that we will be able to have those experiences once again before too long. But we will continue to offer video meetings forever. 

We also got better at working remotely. Even when the pandemic is subsided, Wisconsin will still have bad weather. But now we know we can all get our jobs done from home, so our staff will not have to risk icy drives, and there will be fewer times we have to make the decision to close the office due to weather. Also, we learned to use parts of our case management system that make it easier for us to share documents with our clients securely, and vice versa.

“Zoom court” helped to save a lot of the time that is taken up in travel and waiting. We are hopeful that video conferencing will become a permanent fixture for non-essential court proceedings like scheduling conferences and uncontested matters. It saves our clients money, and makes us more efficient.

We creatively handled the need to get documents signed, with a variety of options depending on the document and the situation.

So many things that happened this year did not have easy answers from the legal standpoint. But we learned that being creative and persistent gets problems solved even when the solutions are not along the traditional paths. Our long-standing firm philosophy that it is more important to meet our clients where they are, than to be a traditional, formal firm that seeks to impress our clients with big words and complicated documents, served us especially well this year.

How we make the most of the lessons from 2020: It’s time to take what we all learned from the pivot and turn it into an advantage. Here are some ways I see this happening for our clients and other readers:

Planning ahead for long term care:  The devastating havoc that COVID 19 wreaked in long term care facilities had sweeping effects on our clients who have a loved one with dementia. Clients with loved ones in facilities faced terrible uncertainty regarding the health of their loved ones, and had to make decisions without the benefit of being involved in person. Residents’ opportunities to visit with loved ones were severely restricted and at times cut off altogether. Seeing this uncertainty, quite a few of our caretaker spouse clients who had been planning to admit their loved one to a facility in 2020 chose to delay that admission.

This is where careful advance planning can provide couples and caregiver family members with the most flexibility. Understanding ahead of time how important programs like Family Care will help to provide assistance to people staying at home, and to compare that with the system that provides care in nursing homes (Institutional Medicaid) helps people make better choices. It also helps  to plan ahead well before any admission to residential care, since this is when asset protection can be maximized. Getting a Family Care Snapshot at the right time can save tens of thousands of dollars and more.

If you are one of the many people who delayed seeking residential long term care for a loved one in 2020, and you have not already visited with an elder law attorney, now is the time to do so. Also, remember that if the work of caregiving longer than you planned to is affecting your health, or even if you just want some support, the Alzheimer’s Association has a free helpline ( 800-272-3900) and free video support programs. 

Understanding your estate plan: One of the recurring issues in 2020 was people who realized that even though they had estate planning in place, they had no idea how to use it.  Panicked calls from family members who needed to understand how a power of attorney worked, or what the documents actually meant, or what needed to happen when a loved one died, were extremely common this year. Whether or not we had initially done the planning for the clients, the 2020 clients still had questions about what the papers meant, since there is a huge difference between  the important initial steps of completing the documents, having them explained by the lawyer, then walking out with the fresh packet of signed papers, and actually using them. 

If you have not taken time to think through how your documents work, seek guidance from your attorney, or consider whether or not they are still reflective of your wishes and choices, 2021 is the time to do that. 

Making an estate plan if you do not have it:  For years, we have tried to get the message out that everyone over 18 needs an estate plan. At a minimum, the “living” documents like powers of attorney for health care and finances are necessary, even for young adults who don’t have an estate to worry about. The alternative if that young adult contracts a severe case of COVID and does not have powers of attorney, is a costly and stressful court proceeding for guardianship in order to make health care decisions. The article here helps you understand more about this.

We think that message is starting to sink in. Our anecdotal experience is that more people focused on getting estate plans in place in 2020 than in prior years. If you were not one of those people who did it in 2020, you will want to get it done in 2021. Start by reading the article linked in the paragraph above, then move on to the article here. 

Understanding the rights of residents in long term care facilities: Families with loved ones already in assisted living facilities or nursing homes were hit particularly hard with the effects of the pandemic. Many of the traditional “residents rights” were upended due to the need to protect residents and staff from the highly contagious disease. At the same time, it became particularly important for people to understand what resident’s rights were still supposed to be protected even in the pandemic. We do not think that these concerns will go away in 2021. Valuable free resources exist for families, including:

• Wisconsin’s long term care Ombudsman program,  which protects residents’ rights in nursing home, assisted living, ant other settings.
• The National Consumer Voice for Quality Long Term Care
• Disability Rights Wisconsin Protection and Advocacy program for people with disabilities. 

The National Consumer Voice in particular has a wealth of information on how COVID impacts residential long term care. 

People on Medicaid need to prepare for the state to resume recertifications and terminations: During the pandemic, administration of the program focused on the COVID crisis and suspended some of the routine procedures that apply to most people on Medicaid, such as requiring a 6 month or annual review of a person’s eligibility, making adjustments to the cost sharing for an individual, or issuing termination notices for people who had lost eligibility due to having more than the allowable amount of resources, or due to a divestment. This suspension is not indefinite. Emergency rules suspending these procedures are set to expire on January 31, 2021. While it is possible that there may be an extension of the leniency past January 31, at some point the rules will be enforced again. If you, your spouse or loved one is on Medicaid, it is a good time to be prepared so that you do not have a crisis when the rules are back in force. An elder law attorney can help you plan for this.

Going into 2021 with eyes open, the future looks a bit more in our grasp. I hope that to be true for all of us.

(Oh yes, and please wear a mask, wash your hands, keep a 6 foot distance, and be patient with the world.) 

 

 

 

 

When “protection” goes wrong…financial exploitation bills introduced in Wisconsin go too far and need to be changed, not passed into law.

Sometimes, protection goes too far. That is what is happening in Wisconsin right now. Two bills were introduced in the Wisconsin Legislature yesterday. These bills purport to protect seniors from financial abuse. They are SB 428 (AB 482) and SB 429 (AB 481). However, the way they are currently written, in the guise of protecting seniors from financial abuse, these bills throw a competent person’s right to control their own finances under the bus.

SB 428/AB 482 (text here) relates to securities industries professionals. These are your financial advisors and investment brokers. Your Edward Jones, Thrivent, Morgan Stanley officers to name a few, as well as the smaller private brokers that you have trusted with your investments.  These are the people that hold your really big funds.

SB 429 / AB 481 (text here) related to financial institutions. This is your bank, big and small, local or national, your mortgage lender, or your credit union.

Both of these bills allow your financial provider to be a voluntary reporter of elder abuse. In other words, your banker can make a report to your local adult protective services agency if he or she suspects that something in your account may be financial abuse. I don’t really have a problem with that part (with the caveat, of course, that you should be able to opt out of this and prevent your financial information from being disclosed at all.) But there’s more. Some of the concerns are below, but these are just a few. If you would like a detailed explanation of  the concerns about each of these bills, click here.

If you are 60, you are vulnerable. First, let’s start with how the bills define a “vulnerable adult.” This is the person to whom these new procedures could be applied. A “vulnerable adult” in both bills is defined as anyone who is 60 or older!  Now, I work with a lot of people who are in their 60s, on issues like estate planning, guardianship of a special needs child, or elder law concerns regarding their older parents. My husband is 62. I can tell you, he is anything but vulnerable. Bill Gates is 64. Hmmm. Is he vulnerable?

How about Oprah? She is 65. She must be really vulnerable at that age (just kidding, Oprah.) She isn’t. Bill Gates isn’t, and my husband isn’t. Neither are the people I work with who are in their 60s, barring a diagnosis of early onset dementia or some type of illness affecting their cognition. But all of them could have their account transactions frozen under these two bills.

Having a standard age, especially one as young as this, without some objective evidence that the person is actually unable to care for their own financial matters, or is truly vulnerable to exploitation or influence, is a real insult to the autonomy of most individuals. It is ageist. Even if the standard age were 90, it’s time to recognize that age alone is not a sign of vulnerability. I have 90+ year old clients who are “sharp as a tack.”

It would be far better to use the definition in Wisconsin’s protective services law, which is not tied to age: “any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”

Account transactions can be frozen for long periods of time: Both bills allow the financial institution or investment professional to freeze a transaction on your account if the institution or advisor has “reasonable cause” to believe that financial exploitation is occurring, has occurred or may occur.  This means, without your consent, a transaction could be dishonored or stopped for a period of time. In SB 428, the “initial” period of the freeze is 15 days and can extend to 25 days. In SB 429, it is 5 days, but can be extended indefinitely. While these freezes are in place, you are potentially incurring bounced check fees, late fees or other penalties, none of which are required to be waived or paid by the institution.

Reasonable cause is not defined: These bills allow a transaction to be frozen if the provider has “reasonable cause” to believe that financial exploitation has occurred, is occurring or is about to occur. However, there is no definition for “reasonable cause.” It is whatever the banker or financial advisor says it is.

Hmmmm what is reasonable cause?

The bills could be improved by adding clear definitions of “reasonable cause” and requiring that the facts be documented in writing.

What is even worse, is that neither bill requires the financial services provider to receive any training regarding financial abuse or elder abuse.  So now, untrained individuals are making judgment calls on an undefined standard, and exercising control over your money.

You can’t get out of it: There is no provision in either bill for you, as a customer, to knowingly “opt out” of this “protection” or better yet, to knowingly “opt-in.”   In a free country, a person should be able to decline the “protections” that the government wants to impose, particularly on the person’s hard earned finances.

Your power of attorney can be disregarded: SB 429 eliminates protections that were put into Wisconsin’s financial power of attorney law. The bill allows a financial institution to disregard your durable power of attorney (DPOA) if they believe your agent is perpetrating financial abuse.  The ability of banks to refuse DPOAs is exactly what Wis. Stat. § 244.20 — the statutory prohibition on refusing a power of attorney —  was intended to remedy after a long history of financial institutions refusing to accept powers of attorney for inappropriate reasons, such as the fact that the documents was not on the bank’s preferred form or was more than 6 months old. § 244.20 was the product of hard work by elder law attorneys in Wisconsin and protects individuals against arbitrary refusal of a properly drafted power of attorney. Proposed § 224.46(4) does an end run around the protections of this section.

No Liability for Mistakes: Both bills relieve the financial institutions of any liability if they act in good faith and with reasonable care under these provisions. You may suffer considerable financial damage if the institution acts in error, but you have no recourse. Also, it is not clear who will be stuck with all the bounced check charges, later fees and other consequences that would come from an error in delaying a transaction. Worse yet, if the customer (or his or her agent)  is in the middle of applying for Medicaid, the application could be denied if funds are not distributed (“spent down”  in a timely fashion, costing tens of thousands of dollars.

I’m not blind to the issue of financial exploitation of vulnerable adults. In fact, I am very well acquainted with issues relating to elder abuse.  Years ago, as the director of a non-profit program serving elders, I obtained one of the first grants from the State of Wisconsin to provide legal services to victims of elder abuse. I have trained professionals on Wisconsin’s Elder Abuse laws, and have trained attorneys on how to represent victims of elder abuse. My firm represents victims of financial exploitation. These are terrible cases. However, two wrongs don’t make a right. Curtailing the rights of individuals to handle their own finances, making their carefully drafted powers of attorney worthless, and relieving financial institutions from all liability create problems that could be even worse.

Call to action: You have the power to let your Wisconsin legislator know that these bills cannot be passed the way they are currently written. With some improvements, they could provide a real benefit. As currently written, the potential to harm individuals who are competently going about their own business with their finances is too high. You need to act quickly, so call or write today. Contact information to find your legislator is here: https://legis.wisconsin.gov/ simply write your address in the space on the right side of the page underneath the heading “WHO ARE MY LEGISLATORS?”  

When the nursing home tells you Medicare is ending, know your rights!

I have the good fortune of spending the better part of this week in Fort Worth, Texas at a conference of the National Academy of Elder Law Attorneys. It’s at these events where I learn new ideas, solidify my thinking on issues I already know, and make new friends. I also get great ideas for things to write about. Today, Attorney Eric Carlson from the National Senior Citizens’ Law Center was talking to us about nursing home residents’ rights. My mind wandered to all of the clients I have worked with over the years who have had concerns and issues regarding something a nursing home was – or was not – doing. The issues related to nursing home rights are many, and at some point a family might feel like they are desperately trying to hang onto a bucking bronco that they have never ridden before and didn’t want to be on in the first place. This article focuses in on one of those challenging situations – when the nursing home says that a patient’s Medicare will be ending.

The setting: Mom is already in a nursing home. She was admitted two weeks ago for rehabilitation, after a hospitalization due to a stroke. Currently, Medicare is covering the costs of her care. Awhile ago, before the stroke, I met with the family to talk generally about Medicaid, because Mom also is approaching the mid stages of dementia and was considering a move out of her home.

I get a call or email from one of the family members who was in the earlier meeting. “The nursing home just told us Mom’s Medicare is ending in three days and we need to make plans for her discharge. Where is she going to go?!?”

My first thought is “WHOA NELLY!” (Maybe it’s the Texas air influencing my choice of words here.) Because this family has just been thrown into the ring of uncertainty and panic thanks to what someone at the nursing home told them, and we need to get a handle on what is really going on.

Luckily most times, “Whoa Nelly” is not what comes out of my mouth. Usually there are questions. The questions are important because each one relates to rights the person has and that we need to discuss. Many of these rights are found in federal regulations. I’ll provide some links at the end.

1. “Did they give you something in writing?”

When a nursing home determines that a patient no longer qualifies for Medicare to pay for that patient’s care, the nursing home must provide written notice in advance. The written notice must include, among other things, a statement that Medicare will be ending, the date it will end, the reason it is ending, and an an explanation of the person’s right to appeal. So, if no written notice has been given, the process has not formally been started. The patient has the right to receive that notice. A decent nursing home will give it directly to the competent patient or to the responsible agent of an impaired patient, and will provide the family with a compassionate person to explain what it means. But sometimes it is just found in a patient’s drawer.

If no written notice has been given, it doesn’t mean the nursing home is not trying to move the patient out. It just means they have not started the proper legal process.

2. “What is the reason they are giving as to why Medicare will end?”

When a nursing home determines that a patient no longer qualifies from a medical perspective to have Medicare pay for the patient’s care, the facility must explain the reason. (This rule does not apply for non-medical reasons such as the fact that the patient’s allotted Medicare days for payment have run out.)

The circumstances under which Medicare will pay for nursing home care are extremely limited, which is why Medicare is not a payment source for long term care in a nursing home. One of the coverage rules is that the care being provided must be daily skilled nursing care or skilled rehabilitation that is medically necessary. If a person has improved (or declined) to the point that they no longer need skilled care, it is possible that Medicare coverage will end. At that point, the family will need to pay privately, qualify for Medicaid, access Long Term Care insurance, or access other forms of payment that may be available.

On the other hand, if a person still needs daily skilled care, Medicare payment should continue (provided there are coverage days still available.) Unfortunately, there is an issue that comes up time and time again in these cases.

Family member: ” The nursing home says Mom has plateaued. She is no longer making progress in her therapy.” This ought to be a great big red flag, like waving a flag in front of a rodeo bull!

By I, Cszmurlo, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=2455738

The fact that someone is no longer making progress is not in and of itself a reason for Medicare to end, if that person still needs daily skilled care or rehab to keep from regressing (backsliding) on the progress that has been made, or if daily skilled care is required for other reasons. Yet, it is a major reason nursing homes use to end Medicare and move people out.

Nursing homes trying to end Medicare coverage inappropriately because a person had “plateaued” was such a common violation that a class action called the “Jimmo” case resulted in a strong set of communications and directives to nursing homes from the government. But it still happens more than it should. A link to a toolkit for families in this situation is included at the end of this article.

3. “Do you disagree with the nursing home?”

I always ask this question because sometimes people agree that their loved one no longer needs skilled care, but other times they feel the patient could benefit from continuing the care. When a patient disagrees with the decision, specific appeal rights exist in Medicare termination cases. The notice must include the details about how to exercise those rights and families must act fast to exercise them.

What the notice does not tell you is this: if you decide to pursue an appeal you must insist that the daily care be continued! Most nursing homes will encourage the family to stop rehabilitation or go down to two times a week. But if you believe Medicare should keep paying, you cannot reduce the amount of care because Medicare only pays if daily care is given! ( Or at least 5 days a week in rehabilitation cases.) So it is a bit of a risk, since if the appeal is unsuccessful, the patient will have a higher bill to pay for the daily care. But if the appeal is successful, and it turns out the patient reduced the amount of care while the appeal was pending, the patient will probably end up paying even though he or she won the appeal.

4. “Do you need more time -or- do you want to stay in the facility?”

If the answer is “Yes” even in those cases where the family does not dispute the decision to end Medicare, I explain that the fact that Medicare is ending does not mean the person has to leave! The reasons that a nursing home can force a resident to leave are extremely limited and do not include simply the fact that Medicare is ending.

If a nursing home wants a patient out it must give a specific written notice of planned discharge that is different from the Medicare notice. The process of evicting a patient requires the nursing home to allow the tenant 30 days to move, except in very limited cases where less time can be given. The nursing home must also provide services to the patient to assist in planning for the discharge, and may not discharge that patient if there is not a safe place for the patient to go.

So, patients have options when Medicare ends. They can:

• Dispute the written notice of Medicare termination;
• Decide to move out if a safe place is available;
• Stay in the facility and continue to pay privately;
• Stay in the facility and  access other payment sources, or seek Medicaid coverage if the facility participates.
• If they simply need more time but do plan to move, they can wait for written discharge notice and discuss discharge planning options.

During this time the patient may be liable for the cost of care if Medicare was properly terminated and no other coverage is available. But no family or client should feel pressure to move when they are not ready, or just because a nursing home staff told them verbally that Mom needed to move.

Each case is different, so in cases like this, patient’s need to be educated, get good advice and strong legal representation if it becomes necessary.

A good explanation of nursing home residents rights is here.

A toolkit that explains the Jimmo case and helps people advocate in those cases is here.