Monday, April 29, 2013

Bill introduced to deny VA pension to Vets who transfer assets

On April 17th, US Senator Ron Wyden of Oregon introduced a bill (S. 748) that would impose a penalty if a veteran or spouse disposes of a resource for less than fair market value within three years of applying for VA Pension benefits.  Under the bill the denial of Pension payments would begin on the date of such disposition and end when the uncompensated value of such resource is reached. The same penalty would be applied to pension benefits for surviving spouses. 
Veterans Pension payments are an important source of financial support for care dependent veterans who are over age 65. 
Under the legislation the VA would be required to obtain information to determine whether a period of ineligibility for Pension payments is required. VA is to deny benefits if it considers that under all the circumstances, if the veteran or spouse had not disposed of such resource, it would be reasonable that the resource (or some portion of the resource) be consumed for the veteran’s maintenance.
The number of months of penalty would be equal to--
‘(i) the total, cumulative uncompensated value of all covered resources so disposed of by the veteran (or the spouse of the veteran) within the look-back date divided by ‘(ii) the maximum amount of monthly pension that is payable to a veteran including the maximum amount of increased pension payable under on account of family members, but not including any amount of pension payable because a veteran is in need of regular aid and attendance or is permanently housebound.
The bill has 5 co-sponsors and bi-partisan support. Called the “Veterans Pension Protection Act” it has been referred to the Senate Committee on Veterans Affairs. The text of the bill is available here:

Friday, April 26, 2013

Can a Court Revoke your Advance Health Care Directive?

If you have an advance health care directive, can a court or guardian overrule your instructions after you become incapacitated? That question was explored recently in a Pennsylvania appeals court case, In Re Border, 2013 PA Super 94 (PA Superior Court, April 23, 2013).
Russell Border was a 62 year old resident of the Golden Living Nursing facility in Berks County Pennsylvania. In 2007 Mr. Border had signed a health care power of attorney and living will which gave instructions for his end of life care and named his daughter Renee as his chosen health care agent.
In 2010 the county Office of Aging filed a petition to have a guardian appointed for Mr. Border. After a hearing on April 14, 2010, the Berks County Orphans’ Court entered an order declaring that Mr. Border was incapacitated and appointing Renee as guardian of his person. The court appointed a lawyer, Sharon Gray, to serve as guardian for his estate. (The guardian of the person is responsible for an individual’s care; the guardian of the estate is responsible for his finances). The court also expressly revoked “any other existing general power of attorney, limited power of attorney and/or health care power of attorney” previously executed by Mr. Border.
Two weeks later the Office of Aging was back in court seeking an amended order. It was concerned that Renee was planning to take her father home, which the Aging Office felt was not in his best interest.  The court issued an amended order which removed Renee and directed that attorney Gray serve both as guardian of the person and the estate of Mr. Border. The order repeated the prior language revoking previously executed powers of attorney.  
Lawyer Gray acted as guardian of Mr. Border’s person and estate from April 28, 2010 until March 12, 2012. In February 2012 Mr. Border was admitted to Reading Hospital and Medical Center and placed on a mechanical ventilator and other forms of life sustaining treatment. Hospital staff advised attorney Gray, as guardian, that Mr. Borders’ condition was terminal. They recommended removal of life supports.  Mr. Border’s family members, including Renee agreed with the Hospital staff.
But attorney Gray refused to authorize the termination of life supports. She based her refusal on discussions she had with Mr. Border after he was declared to be incapacitated, and the provisions in the living will section of the advance directive he had signed in 2007.
The Living Will Instructions
In 2007 Mr. Border completed a Veterans Administration form Advance Directive, which included both a durable power of attorney for health care and a living will. In the living will section of the advance directive, Mr. Border was given the opportunity to state his preferences for life-sustaining treatments in certain situations. He indicated that he would want to have life-sustaining treatments under all categories of situations listed in the document. 
For example, he directed that he would want to life-sustaining treatments even if he were in a persistent vegetative state and there was little or no chance of recovery, if he had pain that could not be relieved, or a condition that would cause him to die.    
In a following section of the living will entitled “HOW STRICTLY YOU WANT YOUR PREFERENCES FOLLOWED” Mr. Border indicated his agreement with the following statement:
I want my preferences, expressed above in this Living Will, to serve as a general guide. I understand that in some situations the person making decisions for me may decide something different from the preferences I express above, if they think it is in my best interest.
The Court removes the Guardian
Faced with the guardian’s refusal to authorize termination of life-supports the Hospital filed an emergency petition seeking her removal. On March 12, 2012 the lower court issued an order removing lawyer Gray as guardian, and appointing Mr. Border’s brother as her replacement. The order authorized the new guardian to decline any life-supporting medical treatments and remove Mr. Border from the ventilator. The brother thereupon authorized the removal of life supports and Mr. Border died later that day. 
Even though Mr. Border was deceased, Sharon Gray carried through with an appeal of the lower court’s order. And the Superior Court (an intermediate appellate court) decided to hear the technically moot appeal because the issues “are of great public importance, are capable of repetition, and are likely to evade appellate review.
The Lower Court did not have the Authority to Revoke Mr. Border’s Health Care Directive 
As part of its April 14, 2010 order the orphans’ court had revoked the advance health care directive Mr. Border had signed in 2007. As a result, during its 2012 proceedings the orphans’ court considered the 2007 directive only as persuasive evidence of Mr. Border’s desires, but not as a binding legal document.   
On appeal, Sharon Gray argued that the lower court had no authority to revoke the advance directive when it appointed a guardian. The Superior Court agrees. The lower court’s action in revoking the directive was inconsistent with the Pennsylvania statute, the Health Care Agents and Representatives Act, 20 Pa.C.S.A. § 5421 et seq.
The appeals court initially notes that the revocation portion of the lower court’s orders addressed only powers of attorney, not living wills.
A “living will,” however, is “[a] writing made in accordance with [the Act] that expresses a principal's wishes and instructions for health care and health care directions when the principal is determined to be incompetent and has an end-stage medical condition or is permanently unconscious.” Id. In other words, a health care power of attorney appoints an individual to make health care decisions on a principal’s behalf, while a living will suggests what the principal wants those decisions to be.
Thus, by the terms of its order, the lower court attempted to revoke only Mr. Border's powers of attorney and not his living will instructions.
But even if the lower court had properly recognized the distinction between a living will and a health care powers of attorney, it did not have the authority to revoke Mr. Border's health care power of attorney. 
Specifically, under Section 5454 of the Act, “[u]nless the health care power of attorney states a time of termination, it is valid until revoked by the principal or the principal’s guardian of the person, notwithstanding the lapse of time since its execution.” 20 Pa.C.S.A. § 5454(d). Therefore, pursuant to the clear terms of Section 5454, unless the health care power of attorney states a time of termination (which Mr. Border’s did not), it is valid until revoked by the principal (Mr. Border), or the principal’s guardian of the person (Appellant). Id. Nothing within Section 5454(d) gave the orphans’ court authority to revoke Mr. Border’s health care power of attorney which named his daughter as his health care agent. Furthermore, we note that under the terms of Section 5454, because a guardian has the authority to revoke a power of attorney, the statute recognizes that the power of attorney remains valid beyond a principal’s declaration of incapacity and the appointment of a guardian.
Health care powers of attorney remain binding legal documents even beyond the incapacity of the maker and cannot be revoked by a court. However, as noted above, the Pennsylvania statute does give an appointed guardian of the person the authority to revoke a principal’s health care power of attorney. In effect, a court can revoke a health care power by appointing a guardian who the court knows will take that action.
Note that the Superior Court opinion does not discuss whether a guardian can revoke a principal’s living will. The section of the statute (Section 5444) that provides for revocation of living wills does not mention any such authority for a guardian. 
Thus, it appears that while the guardian may revoke a health care power of attorney, this authority does not extend to revoking the principal’s living will instructions. This distinction makes some sense – both guardian and health care agents are potential implementers of health decisions for the principal, and could conflict. But instructions issued in the past are static directions to be interpreted, but not subject to change or revocation, by whoever is the implementer.   
Did the Orphans’ Court have the Authority to authorize the Guardian to terminate life-support?
Because Mr. Border had a legally binding advance directive the parties and court should have applied the provisions of the directive to guide them in their decision making process.
Mr. Border’s 2007 health directive named his daughter Renee as his health agent and that appointment was still effective in March 2012. Although she didn't know it, she had the authority to make health care decisions for her father, subject to being overruled by Sharon Gray, the guardian of the person.
In this case the decision to terminate life-supports was ultimately made by a newly appointed guardian of the person. Was the lower court’s replacement of Sharon Gray as guardian within the court’s discretion? The Superior Court notes that the orphans court had the authority to remove her as guardian if she was not acting in the incapacitated person’s best interest.    
In this case Hospital personnel believed that sustaining Mr. Border’s treatment was contrary to his medical diagnosis and prognosis. And Mr. Border’s adult family collectively believed that he would not have wanted life-sustaining treatment in his condition. On the other hand, Sharon Gray cited conversations she had with Mr. Border in which he declared his desire to live. And his living will instructions stated that he preferred to receive life-sustaining treatment in various end of life situations.  
The lower court considered the evidence and determined that Sharon Gray’s refusal to authorize termination of life supports was not in Mr. Border’s best interest. On this record, the Superior Court finds no abuse of discretion in that decision.
Somewhat curiously, the Superior Court states that Sharon Gray was not acting in Mr. Border's best interest because she was ignoring the “general guide” provision in his will that gave discretion to the decision maker. The court’s emphasis on the general guide section of the living will is worrisome. Is the implication that the lower court's removal of Sharon Gray as guardian would have been an abuse of discretion if Mr. Border's living will had not included the general guide statement? Just how binding are living will instructions where no discretion is included?
Lessons from In re Border
I do not know whether Sharon Gray will appeal the Superior Court’s decision to the Pennsylvania Supreme Court, or whether the high court would agree to hear the case. In any event, this sad case illustrates the difficulty of applying advance directives to health care decision making at the end of life.
Mr. Border planned ahead. He created an advance directive that gave instructions as to his care preferences and named his choice for a surrogate decision maker.  He gave discretion to his chosen decision maker to vary from his stated preferences if she determined it to be in his best interests. But due to intervention from a no doubt well-intentioned protective system (the Office of Aging and orphans court) his chosen decision maker was not able to make decisions for him when the time came. 
Sometimes events just overtake advance planning. Even if you have planned ahead with an advance directive, and your family is aware of your preferences, your end of life decisions may end up being made with the help of a Judge.
Although a court does not have the direct authority to revoke an incapacitated person’s health care power of attorney, it does have the power to appoint a guardian. And the guardian it appoints does have the power to revoke the health care power of attorney.  It’s a two-step process.
The case also perhaps suggest a danger in “check the box” form living wills. Did Mr. Border’s elections of “yes” to life-sustaining treatment under various dire situations reflect a considered and informed choice or merely a quick flick of a pen? 
Would the decision in this case have been different if Mr. Border had made the following selection in the general guide section of his living will "I want my preferences, as expressed in this Living Will, to be followed strictly, even if the person making decisions for me thinks that this isn't in my best interests."  
How much weight should be given to potentially ill-considered check the box selections on a standard form advance directive?  Pennsylvania law does not require that you give any specific treatment instructions in your advance directive. 
Be careful what you wish for when you prepare your advance directive.  You can complete a form in a hurry. Those boxes on the form are well-intentioned and easy to check off without much thought. But they can be binding in the future. And it is very difficult to imagine today the future circumstances you may encounter that might become intolerable.

Saturday, April 13, 2013

The Cost of Long Term Care Services and Supports

Each year Genworth reports on the cost of long term care in the United States. It surveys nearly 15,000 long term care providers in 437 regions nationwide. The resulting details “can help consumers plan for long term care costs in their preferred location and care setting.”

What is Long Term Care

Long term care refers to the types of assistance you may need if you have a prolonged physical illness, disability or severe cognitive impairment (such as Alzheimer’s disease) that keeps you from living independently. These limitations may prevent you from carrying out basic self-care tasks, such as bathing, dressing or eating, called Activities of Daily Living (ADLs). And you may need assistance with Instrumental Activities of Daily Living (IADLs), including meal preparation, money management, house cleaning, medication management, and transportation.

About 70 percent of people age 65 or older will need long term care services at some point in their lifetime

Unfortunately, the cost long term care services and supports is generally not covered by Medicare or other health insurance. It can easily bankrupt the recipient and destroy a family's financial security.  The Genworth survey provides locally based cost of care information that can help families understand, prepare for, and perhaps avoid a long term care personal and financial catastrophe.

Facility rates are increasing more rapidly than home care

The Genworth 2013 survey has now been published. Here is its overview:

     Looking back at the past five years of survey results, Genworth recognizes emerging trends across the long term care services landscape. Overall, the cost of care among facility-based providers has steadily increased. For example, in 2008 the median annual rate for a private nursing home room was $67,525, compared with the 2013 median annual rate of $83,950. This means that Americans can expect to pay approximately $16,425 more per year today for a nursing home than they had to pay in 2008.This increase represents a 4.45 percent compound annual growth rate over that period.

In contrast to facility-based care, rates charged by home care providers for “non-skilled” services have remained relatively flat over the past five years. For example, whereas the national hourly private pay median rate charged by a licensed home health agency for a home health aide was $18.50 in 2008, the 2013 hourly rate has only slowly crept up to $19. The historical compound annual growth rate for this type of care service has been only 1 percent over a five-year period. Home care rates have remained flat in part because of increased competition among agencies and the availability of unskilled labor, and because the companies that provide these types of services do not incur the costs associated with maintaining stand-alone health care facilities.

Care Rates for Williamsport and Wilkes-Barre/Scranton

The study provides a list of rates being charged in individual localities throughout the nation including Williamsport and Scranton/Wilkes-Barre in Pennsylvania.

The median rates for various services in Williamsport and Scranton/Wilkes-Barre are:

Homemaker Services Hourly Rates
$18 Williamsport
$19 Scranton-Wilkes-Barre

Home Health Aide Services Hourly Rates
$19 Williamsport
$20 Scranton-Wilkes-Barre

Adult Day Health Care Daily Rates
$75 Williamsport
$64 Scranton-Wilkes-Barre

Assisted Living Facility Monthly Rates
$3,365 Williamsport
$2,800 Scranton-Wilkes-Barre

Nursing Home Daily Rates (semi-private room)
$259 Williamsport
$260 Scranton-Wilkes-Barre

Nursing Home Daily Rates (private room)
$296 Williamsport
$270 Scranton-Wilkes-Barre

The median annual rate for a semi-private nursing home room in Williamsport is $94,535, and the median private room rate is $108,040.

Here is a link to the Pennsylvania State-Specific Data from the Genworth 2013 Survey:

As Genworth notes in the report: “With long term care costs on the rise, planning and preparation are more important than ever.” Pennsylvania residents can meet with an elder law attorney at Marshall, Parker and Weber to set up a plan that will protect you and your family.