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Mom took a fall and broke her hip. Now what do we do?

The Importance of Having a Comprehensive Financial Power of Attorney and Advance Directive for Healthcare in Place to Avoid the Necessity of a Guardianship Proceeding.

Many attorneys are familiar with this phone call from a client or a friend: Mom fell and broke a hip. Oh, and by the way, she was just diagnosed with the early stages of dementia. After surgery, your client was asked by the hospital social worker who mom’s Healthcare Agent is because someone has to provide a list of three rehabilitation facilities where mom will undergo rehabilitation, . . . now what?? Mom’s bouts of confusion since the fall have increased in frequency, and medical staff is beginning to question her mental capacity to make her own decisions. Navigating the elder care system and the limits of your ability to her decisions in this fragile state can be a confusing and uncertain time for both of you.

The estate and elder practitioner’s first question is: does Mom have a comprehensive General Durable Power of Attorney (“GDPOA”) and an Advance Directive for Healthcare? (commonly known as a “Living Will”)? Have the doctors determined her to be mentally incapable of making her own medical decisions? If the answer to both of these questions is “No,” time is of the essence to prepare these essential documents and visit mom to determine her ability to understand what a GDPOA and Advance Directive for Healthcare is, and who she wishes, and trusts, to handle her medical and financial affairs in the event she loses the ability to manage them herself. Without capacity, mom won’t be able to execute these documents and the family will need to resort to the court to be granted permission to handle mom’s affairs. The #1 reason we should be concerned about ourselves, our loved ones, our clients and our friends having these documents in place is, no offense to our brethren on the bench, to avoid a guardianship proceeding. In general, a guardianship proceeding, pursuant to N.J.S.A. 3B:12-24 et seq., is filed by summary proceeding with an OTSC and Verified Complaint asking the court to do two things: 1) Declare mom is incapacitated to govern herself or manage her affairs, either medically or financially or both; and 2) Appoint a general guardian to exercise all rights and powers of the incapacitated. In critical situations or where imminent harm may occur, there are emergent guardianships which take a faster track to appoint a temporary guardian, but the underlying action must still proceed, and the system can be worrisome for those who have never had experience with the court system before.

It is possible for a layperson to file a guardianship proceeding on their own, but for the most part, the attorney is consulted for a fee. Two doctors are consulted to prepare Certifications of Incapacity. Most physicians charge a nominal fee to prepare the Certification, and will require additional fees if they are actually called to testify. The court appoints an attorney for mom – the alleged incapacitated, who is also entitled to a fee. Even though your client may believe mom is definitely in need of a guardian, mom has the right to due process and to object in the event she wishes either to not have a guardian, or not have your client appointed as her guardian. Then there are the family members. Everyone who has an interest in mom’s estate must be given notice and the right to object, and possibly, contest who is going to be appointed as the guardian. Now the fees could really escalate if litigation ensues.

Many people are under the false impression that simply because you are a spouse or an adult child that you have the right to obtain medical information, make decisions and handle mom’s affairs. That is not the case. In order to obtain medical information, pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 USC 1320d and 45 CFR 160-164, even a spouse must have been given authority, in writing, to obtain the information. “Why?” you ask . . . well, not to play “devil’s advocate,” but our matrimonial bar can certainly attest that not all married couples are content to allow their spouse to have their medical information, let alone make medical decisions for them. I like to use the hypothetical tale of the married man who’s been in a car accident, with his mistress of a generation younger. Both are undergoing emergency room surgery, and the children call mom to inform her. They’ve been contacted because the EMTs found a battered emergency contact card in his wallet that listed his three children. She arrives at the hospital and the doctor comes out of the examination room and asks who the man’s wife is. She volunteers that she is married to the patient. The unknowing doctor says, “Well, madame, we’ve got to make a decision here. He’s under anesthesia and can’t consent to surgery. Either we take the spleen or the gall bladder. Something’s got to be removed or he will surely die. Which do you consent to? The wife says, “Why, take the spleen, of course!” The surgery is a success. The man awakes in recovery and asks, “What happened?” The doctor tells him he was in a bad car accident that resulted in abdominal injury that required the removal of either his spleen or his gall bladder. The man asks, “You took my gall bladder, right doc? Less complications down the road, right?” The doctor responds, “Actually, your wife consented to us removing your spleen.” The man exclaims, “My wife?!” “I haven’t spoken to that woman in ten years!!! I’m going to sue your pants off, doc!” Now, that’s not the real history of the statute . . . but you get the picture of the importance of exactly why we have the right to select our own Healthcare Representative, don’t you?! The medical profession is charged under HIPAA to protect all individuals’ rights to privacy. You may notice that every time you visit a new physician you are provided with a form of HIPAA notice, and a release for you to set forth whom you wish to have your medical information. The New Jersey Advance Directive for Health Care Act, set forth at N.J.S.A. 26:2H-53 et seq., gives every adult the right to sign (or direct another to sign at his or her direction) an Advance Healthcare Directive before two witnesses or a notary or attorney at law. Prior to every in- or outpatient procedure, you will be asked if you have an Advance Healthcare Directive. If you don’t, you will be provided with a form to fill out. But beware, that form is only valid during your treatment at that particular facility. The moment you step out the door, it becomes invalid. A comprehensive document prepared by an estate and elder attorney will provide you with much more certainty; it is valid until you revoke it, or is invalidated by a court of law for a reason.

On the financial front, do you know if mom has a supplemental health insurance policy, or “gap coverage,” to pick up where Medicare will leave off after twenty days of in-patient treatment? Does she have a long term care insurance policy that you will need to make a claim upon if it’s not possible for her to remain independent? Is she the widow of a veteran who may be eligible for aide and attendance benefits? Does she have assets that may be eligible for protection from nursing home claims or Medicaid estate recovery? If you don’t know the answers, you’ll need a comprehensive General Durable Power of Attorney to find out and manage the options – not the two-page form you can purchase at an office supply store, but a tailored form to mom’s particular circumstances and wishes pursuant to N.J.S.A. 46:2B-8.1. Does mom wish to continue a gifting plan for her grandchildren if she becomes mentally incapacitated? Will mom require a Medicaid waiver application upon her spending down her assets at the assisted living? What if mom’s required to file a tax return, or you wish to challenge an Explanation of Benefits statement? All of these powers must be set forth in a GDPOA. Without the GDPOA, or an incomplete or incorrect GDPOA, mom’s loved ones will need to resort to the court to gain authority as her Guardian.

Spending some quality time with your clients to tailor their documents, and explaining the enormous cost savings by investing in you a little to prepare the GDPOA and Advance Healthcare Directive documents while mom still has the capacity to do so (and dad, and your siblings, and you, and your 18 year-olds and up for that matter!) will give your clients peace of mind that when the crisis strikes, they will be able to weather the storm.

Originally published in The Clarion, Vol. 5, Issue 4, March 2014

By Stacey M. Edwards (publishing as Stacey L. Pilato),

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