April 4, 2019


Dementia Caregivers – Legal and Estate Planning

Griswold Home Care’s Director of Community Relations, Ryan McGuire recently hosted a webinar with Local, San Antonio based Elder Law Attorney, Carol Bertsch. Many Alzheimer’s and dementia caregivers are focused on the day to day of managing care and forget to consider the important legal and financial issues associated with the disease. No matter what our financial situation, the best thing we can do is develop a plan as early as possible. If you are interested in discussing legal issues with Carol you can contact the Law Offices of Carol Bertsch.



Webinar Resources:

Griswold Home Care – https://griswoldsa.com/

The Law Offices of Carol Bertsch – https://www.assistingseniors.com/

Upward Care – https://www.upwardhealthcare.com




Ryan:          I guess we can go ahead and get started, Carol. So I’ll just kind of introduce ourselves. I’m Ryan with Gridwold Home Care and joining us today is Carol Bertsch who specializes in elder law and she works at the law office [inaudible] by Carol Bertsch, and then I’ll just go over kind of the format of the webinar. If you’re calling in front of a computer and you have a chat function on the sidebar of the platform. So just throughout the presentation and you can submit questions in that chat function, and I’ll just enter in a message here that it’s going to draw your attention to it. So that’s an option for you. And then the format of the overall presentation, I think Carol has about 30 minutes of actual PowerPoint to go over. And so submit questions throughout and then every once in a while we’ll stop and ask questions. And then at the end we’ll have another time for questions. So that’s kind of the housekeeping items. Carol, if you want to maybe tell us a bit about you and your practice and then feel free to jump into the presentation.

Carol:          Great, thanks, Ryan. So if you can’t hear me or understand me, Ryan, be sure and jump in and let me know to repeat myself. My name is Carol Birch, and I’m an elder law attorney here in San Antonio. Today, we want to talk about legal issues affecting persons with dementia, and I’m going to start with the basics. The things that we want to think about are powers of attorney. So I’m going to be really basic first and ask what are powers of attorney for those of you who might not know. In Texas, we use two powers of attorney. We use a power of attorney for finances and that could be called a statutory, durable power of attorney, or you might know it as a general durable power of attorney. And then we also use a medical power of attorney.

So the medical power of attorney is the document that lets you appoint someone to handle medical decision making for if you are incapacitated. For the financial power of attorney, the principal, that’s the person who’s giving the power of attorney, gives the agent, that’s the person that gets the power and we also call that person, the attorney in fact authority to act for the principal in all their business areas, finances, insurance working with the bank, working with maybe assisted living facility or something like that. So that’s what we’re talking about.

Powers of attorney are really important when you have work with dementia, because as we go towards the end, if you don’t have powers of attorney, sometimes what you’re stuck with is guardianship. So we want to get those powers of attorney in place as soon as possible. And in fact, each of us should have a power of attorney for finances, and because we never know what’s going to happen. So it’s not just a person with dementia who should get a power of attorney. It’s all of us that should have powers of attorney.

Let’s talk a little bit about the medical power of attorney real fast. What we want to know is, so when we do the medical power of attorney, but it’s not just a piece of paper that sits in the drawer, it’s about finding out what the principal would want so that the medical agent can make the correct decisions. The medical agent is supposed to make decisions based on what the principal, the person giving the power of attorney would want. So we need to know what they would want. We need to know, for example, their wishes regarding quality of life. We want to know how the person with dementia weights the choice, for example, between alleviation of pain versus staying alert enough to interact with loved ones.

And this is a very subjective question. This is just an example of what you want to know as agent under a power of attorney for medical decision making. You need to have a sense of the values that the person with dementia has. Of course, if the person with dementia is already incapacitated, they can’t do a power of attorney because to have a power of attorney. You’ve got to understand what you’re doing. You’ve got to understand that you’re appointing someone to be in charge for you. So we have to have these conversations with someone while they still have capacity. This is yet another reason why we want to do these early, rather than late, because they’re hard conversations and they’re hard decisions. And as the person loses cognition or has more deficits in that cognition, they’re not going to be as able to do the abstract reasoning that is required to answer questions, like, do you want a feeding tube or not? Hope that’s making sense for you?

Ryan:          Just one question Carol. So when it comes to evaluating capacity, so if the [inaudible] hasn’t got their legal documents, in terms of you know, the initial diagnosis, how do you as an elder law attorney assess whether they’ve got capacity enough to prepare these documents?

Carol:          That’s a great question. That’s a great question. It really depends on the situation and the person. So if we’ve got a situation where it’s mom and dad and kids, and everyone gets along and is in agreement, then I am more comfortable doing the powers of attorney for mom. Say, let’s say dad’s got dementia and we’re appointing mom as the agent. I am more comfortable doing that, even though dad is further along the road to diminished capacity. But if we’ve got, say second spouse, and we’ve got children from a previous relationship and we’ve got conflict between them, I’m going to want dad to really have a good, strong sense of what he wants. And I’m going to want to be comfortable that he understands what he’s doing. So when I’m doing is asking him maybe the same question more than once to see if he gives me a consistent answer, asking open ended questions, not conclusory questions, like, do you want your wife to make decisions for you? I don’t ask that kind of question. I ask, who do you want to make decisions for you? And we certainly don’t say you want your wife to make decisions for you, don’t you? That is, basically putting words in his mouth and we’re not going to do that.

So we ask who do you want to make decisions for you? And we ask it at different times in the conversation to make sure that his answers are consistent. So one thing we’re looking for is consistency over time, and then some understanding of, well, do you need assistance now? And who helps you now to see if he’s understanding that? Does that make sense?

Ryan:          Yes, totally.

Carol:          So when we’re talking about medical power of attorney here, just some questions that, again, just some things to be thinking about when you’re doing the medical power of attorney to talk about with your loved one with dementia, so that you know, what decisions to make when the time comes. For example, is it more important to the person that they have their wishes followed, or is it more important to the person that everyone be in agreement? And there be consensus among the family, even if that’s not the specific wish that the person with dementia had. Those are different values that people have and we want to know the right one to choose when you’re honored with the selection or the appointment as an agent under a medical power of attorney.

So the medical power of attorney, I like to say is not about the document. It’s not about the piece of paper. It’s about the conversation that the medical agent has with the principal. It’s about the conversation that the person with dementia is able to have with their loved ones about what their wishes are. It’s definitely not a document that you just sign and put in a drawer. It’s a document that has to be talked about. Just so you know, the document does come from the Texas health and safety code and there’s a statutory form. That means that the legislature has promulgated a form and the medical power of attorney has to be substantially in that form. So if you are doing a medical power of attorney on your own, without a lawyer, you want to use the Texas form. You don’t want to download a form from somebody else, from another state.

And there’s other documents out there. For example, there’s the Five Wishes document that you might want to use to have a conversation, but you don’t want to use the Five Wishes document for the medical power of attorney. You want to have the document for medical power of attorney and just FYI, even though you have to have capacity to sign a medical power of attorney, you can be incapacitated and still revoke a medical power of attorney. So that is kind of a drawback document. And then if you’ve got someone with dementia and perhaps they’re getting a little bit paranoid about their wife saying that she’s going around with other people or something like that, I don’t want her to make decisions for me anymore, that’s a revocation and then we’re stuck. But hopefully, we can redirect the person and not have a real specific replication of the power of attorney for medical.

Another point to remember is that it becomes effective only incapacity. So that means that while the person with dementia has capacity, according to the physician, the person with dementia makes their own medical decisions. So it’s only when the physician has determined that the person is unable to understand the nature and consequences of their illness or the pros and cons of their treatment decisions, that’s the time that the medical power of attorney becomes effective. What do we do if there is no medical power of attorney, or if the person does revoke the power of attorney and lacks capacity to do a new one? Well, the Consent to Medical Treatment Act says that we turn first to the spouse, then to, if we don’t have a document that says, who makes decisions, an adult child who has the consent of the other adult, children can make decisions for the person who’s incapacitated.

The majority of the reasonably available adult children can make a decision for the person incapacitated, the parents if we have parents. And then an individual who was clearly identified to act for the patient or next of kin or a member of the clergy. So there’s this hierarchy of can make decisions for the person with incapacity, if there is no medical power of attorney. Now you might say, since we got the consent to medical treatment act, why do I have to bother doing a medical power of attorney? You know, the law’s going to say who should do it? I think it makes it a lot easier for the family if we have someone who is designated and can make decisions, rather than having to say, oh the majority of the adult children agree well, then you’ve got the adult child who disagrees, who’s making a stink with the medical providers and the medical providers don’t want to go with the majority of the children because they don’t want to get sued so better that we have someone designated.

Now we also want to have a primary appointee, a primary agent, an alternate agent, and even a second alternate agent. We don’t want to just name one person. We’ve got to have more people behind because again, we never know what’s going to happen. So we’ve got to have backup in case something happens to the primary or the ultimate. So that’s the medical power of attorney.

Let’s talk a little bit about the financial power of attorney. Now, in this case, it is all about the document. The financial power of attorney, there’s no law like the Consent to Medical Treatment Act that allows family members to handle finances if we don’t have a financial power of attorney. So we’ve got to have that in place and we need to have that in place as soon as possible. Everybody needs one. So the statutory form, the legislature has promulgated a statutory form for the financial power of attorney in the estates code, but is the statutory form enough? For example, the statutory form gives you the option of being immediate versus springing. What that means is you can make the financial power of attorney effective immediately upon signing or effective only upon your incapacity.

Now you may say, Carol, I only want this to be effective upon my incapacity. Why would I want to give my agent permission to act for me while I have capacity? That doesn’t make sense. However, I recommend that you make it effective immediately. And the reason is, we want it to be as easy as possible for your agent to act for you. We want your agent to be able to step in immediately if needed. And if we say this power of attorney is only effective upon my incapacity, then your agent is going to have to have something, some evidence or documentation that you’re incapacitated before they can act. And getting that evidence of incapacity is a hassle. For example, let’s say that you go to the bank, you’re acting for someone with dementia and you say, I need to handle the finances, but the power of attorney is effective only upon incapacity. It’s a springing power of attorney. It springs into effect only upon incapacity.

The bank is going to say, well, show me that this person is incapacitated and you’re going to say, oh, okay, here’s a letter from the doctor. But, what if the person with dementia is paranoid and will not go see the doctor, so you don’t have a doctor’s letter? Or what if the person with dementia is doctor has changed insurances, they have a Medicare advantage plan and your doctor is no longer taking that advantage plan. So we have to go set up an appointment with a new doctor. And the new doctor is not willing to say, oh yeah, this person’s incapacitated. When they don’t have a relationship with them, they don’t have a history with them. So getting word from a doctor is not that easy.

Some doctors just don’t want to do it, whether they have a relationship with the patient or not. They’re not willing to do it. So what could be, what should be a seamless step and going to act for someone becomes difficult and you’re already giving someone a difficult job. Think about it, managing your finances, making sure your bills get paid, making sure you’ve got insurance on your house. All of those things are a job that you have to do. And then imagine, you’re taking that over for somebody else. So it’s double the job. You have asked someone to take on a responsibility for you, and then you’re making it harder for them by saying, oh, and by the way, when it finally comes time for you to do your job, you’re going to have to do the extra steps of getting someone to show that I’m incapacitated.

So the financial power of attorney is easier if it is immediate. Now, if you’re doubtful, if you say Carol, I don’t want that person to have authority to act for me while I have capacity. What if they misbehave? Well, if they’re going to misbehave, while you have capacity, what protections do you have from them when you’re incapacitated? That’s not the right person to appoint. That’s not a person you can trust. The power of attorney for finances should also be durable. That means it endures throughout your incapacity and then we also, if we’re dealing with a person with dementia, want to have a very expansive gifting power and allow self-dealing in that power of attorney, because if we’ve got someone with dementia, we’re probably going to be looking at long-term care and paying for long-term care, we often need Medicaid. So for that, we’ve got to have a gifting power that is broad and allows the agent to gift to herself or himself. Should I stop for questions Ryan? Or should I go on?

Ryan:          Yes, it would be a good time for questions. I believe everybody has the ability to unmute themselves. But they can also submit things for chat. So if you have any questions now it’d be a good time to ask those. And just while people are kind of gathering their thoughts, a question here, so if you have the financial POA and you decide to make it a springing document and like say, you take evidence, maybe a medical note, a doctor’s note to the bank. Is it is there like a probate court that would issue say, okay, you are in capacity or is it individually you’re going to each financial institution to try to establish this incapacity? Or is there somebody, you know, like say probate or some other court that says, okay, yes they’re in capacity.

Carol:          That’s a great question. If you’re at the point where the probate court is saying, you’re incapacitated, then you are past power of attorney. You’re looking at guardianship and you want to avoid guardianship, if at all possible. It is expensive. It is a hassle. It is very time consuming. And we’re going to talk about it in just a second. In fact, let’s see. No, not yet, but we’re going to talk about it in a minute. So we talked a little bit about what the power of attorney should cover. We want it to be this broad. We want it to give the agent full authority, but there are some drawbacks to that because there’s no oversight of the agent. If you’re in a guardianship, the court is looking over the shoulder of the guardian, but with the power of attorney, you have no oversight. And what that means is your agent has a license to steal, basically.

So you’ve got to select someone who you feel very confident in, who you feel is completely trustworthy. That means that you’ve got to step back and be realistic. So you can’t just view the family members, your family members with rose colored glasses and say, oh, I love them so much. No, we’ve got to be brutally honest about what their capabilities are and what their propensity for dishonesty is basically. So doing a financial power of attorney is imperative for us to be able to care for a person with dementia. But it’s also so risky because of the license to steal, because it gives the agent all this flexibility, all these powers, and then they can misbehave, unfortunately. So it’s a slippery slope, I would say that it’s one of the most difficult decisions. It’s not something to be taken lightly.

So now let’s talk about guardianship. What if there is no financial power of attorney? As I said before, we don’t have a law that says, oh, wife can come along and make a withdrawal from account that is only in husband’s name. That’s not permissible. So we have money available, let’s say in an IRA to pay for husband’s care. We have no one who can withdraw those funds. What do we do? Then we have to go to the probate court. We have to say, judge, this person is incapacitated. We have to provide medical evidence to support our allegation. So we need a doctor’s letter that says very specific things and gives very specific information that the court requires in order to establish that the person is incapacitated and all along, we are subject to a conflict or a contest with other family members who think, Oh, he’s incapacitated, but I should be the guardian, not you.

So we have children fighting over who should be the guardian. Everybody gets a lawyer, even the person who’s presumed to or is alleged to be incapacitated, gets a lawyer to proposed ward. So we’re talking about a lot of attorney’s fees and we’re talking about a lot of time and expense involved in a guardianship. We want to avoid that if we can. So, as I said before, we really want to have those powers of attorney in place when we have a loved one with a diagnosis of dementia, but we want to make sure that the persons who are appointed are completely trustworthy and we want to avoid guardianship, unless we don’t have anyone who’s trustworthy in that case. Guardianship is our best bet because then we have the court overlooking that person’s shoulder, the Guardian’s shoulder.

Ryan:          Let me just jump in really quick. There was a question that was submitted earlier. But one of our attendees, I just want to get a chance to get to it. And it’s kind of related to this area. So I’ll read the question here. It says, basically my father passed away in 2012. My mother became the person that would be in charge of his estate. But my mom has had dementia for about 10 years, so I’m taking care of bills, bank accounts, et cetera. But I don’t have an official or legal form that says I’m her guardian or probably POA as well. I’m inferring by the question, would I need to guardianship of her or what reasons would I need it? That’s the question.

Carol:          Well, that’s a great question. You need guardianship when you’re trying to transact business for the person with dementia and you’re coming to a stop sign. Somebody is not cooperating with you and saying, no, I will not give you this information. I will not distribute this money for you. I will not do what you want because you’re not the person in charge. Go get a guardian. That’s when a guardianship is necessary. The guardianship is also necessary, if we have a person who’s incapacitated and let’s say she’s done a power of attorney, but she gets mad at her agent. I had this situation where mom did power of attorney for daughter, and then she would get mad at daughter because she had dementia and she would revoke the power of attorney, daughter was on the bank accounts. She would go close the bank accounts and open new ones in her name only. So because she got angry with her daughter and daughter couldn’t transact business for her because she would close the bank accounts and revoke the power of attorney, we had to get a guardianship. Now, one thing I would say about that question also, to transact business, to close the father’s estate, we have to probate it. So we have to go to probate court and address any debts that he had or funds that were only in his name. She didn’t really ask about that, but the way that you handle the estate of a person who’s deceased is to probate it.

Ryan:          Okay. Very good.

Carol:          Okay. Any other questions?

Ryan:          Any other questions there? I’ll go ahead and take everybody off mute for just a minute or two for anybody who has any follow up questions. Okay, I think we’re ready to move on, Carol.

Carol:          So I guess I don’t want to beat a dead horse, but I really can’t emphasize enough the importance of doing the documents as early as possible so that you don’t have to get stuck in a guardianship situation down the road.

Ryan:          Very good. Are you at a stopping point?

Carol:          I am. I’m ready for questions and if we don’t have any other questions, I don’t have anything else.

Ryan:          Okay, perfect. I do have some questions prepared. But any of the attendees that are listening, feel free to submit via chat or mute yourself and ask some questions. So I’ll go ahead and I have some prepared questions. I’ll kind of go through them. So I guess one of the questions here is an administrator. I was submitted by an administrator of an assisted living, and she’s saying one of the residents refuses to take medication, refuses to use a walker, refuses baths you know, sends home care away, eating all kinds of different things, basically stopped caring for themselves. And she’s saying, no one can force these individuals to comply with these activities. Families have to watch with their parents decline, not knowing how to help. What are families to do when doctors are unwilling to declare an elderly person incapacitated of making their own decisions.

Carol:          So one answer which is kind of glib, but is to get a doctor who is competent. When we have a patient or a resident who is that non-compliant, I’m sure there are, well, it’s possible, there are reasons to behave in those ways, other than incapacity. But to me, that sounds a lot like incapacity. So we need a physician who can, and I’m talking about a psychiatrist or a neurologist, someone who can assess the patient and say, yes, this person does not have decision making capacity. I don’t think it benefits anyone to stick with a physician who, I mean if the physician strongly feels, yes, this person has capacity and you are wrong and asserting that the person is incapacitated, okay that’s one thing. But if you have a physician who’s just not willing to take a stand, then I think the answer is to find a competent physician. Is that a good answer?

Ryan:          Yes, I think back to my own experiences with you know, in our support group, we’ve had a lot of families talk about their general physician is just not that familiar with the disease and the progression of Alzheimer’s and dementia and they really didn’t trust them to diagnose or provide resources in the beginning stages. So I could see where your physicians are not that capable or know what really, what to look at when they’re trying to determine true capacity versus incapacity. So I think it is very, so I think it makes sense to go to a specialist like neurologist, somebody that sees these conditions a lot or like say a psychiatrist. So that does make a lot of sense.

Ryan:          We have another kind of question it’s somewhat similar. But I think it does have to do with capacity and now after the presentation. So basically it’s somebody in this person’s life, probably a parent and they’re concerned that they’ve been a victim of financial exploitation. But they can’t really tell because, you know, they don’t have access to the financial documents and their parents, let’s assume is not willing to share those. Is there anything they can do to, number one help determine have they been financially exploited? If we have a parent that’s spending themselves, not managing their finances, they’ve lost executive function and really spending their way into financial destitute. At what steps can a son or daughter take to intervene without any documents prepared.

Carol:          I think that a resource that we often overlook is adult protective services. If you’re concerned that there’s been exploitation, even if you really can’t tell because you don’t have access to the documents. One thing to remember is that all of us have a legal responsibility. The law requires us, if we suspect exploitation abuse or neglect, we must notify adult protective services. They are a resource, definitely they don’t get everything right. They make mistakes and it can be intrusive to have them involved. But on the other hand, they can also stop the bleeding when there is exploitation and preserve assets. So I think that adult protective services is where I would go first, if I was worried about exploitation.

Ryan:          That makes sense. So another question here, it says, my significant other 30 years has mild dementia and his son has taken control of financial decisions as a POA. So I guess there was a document prepared and named in the POA. And it was I guess she’s asking if we’re marrying, will I have rights as a spouse or how do we manage the decision making process?

Carol:          Yes, that’s a tough one because this is an example of a time when it really is important to select the correct person to be your agent. So if you have selected your child and then you get married, that doesn’t make a difference, your child is the person who is selected. Now, if you have capacity to get married, you certainly have capacity to do a new power of attorney. This person has mild cognitive impairment, and that doesn’t mean that they can’t do a new power of attorney, But, when they were making decisions about who to appoint and this is the significant other who’s got the concern. So the person, the principal who made the decision is maybe happy with the child taking over, it’s just the significant other, who’s not happy. So that’s something to think about as well, but getting married does not change your financial, or your medical power of attorney. Although getting divorced does, if you appointed your spouse and then you got a divorce, your spouse can no longer serve. You have to do a new document, appointing the ex-spouse, if that’s the person you want.

Ryan:          Very good. That’s good information. So when it comes to Medicaid, so you talked about long-term care, you’re planning for with the long-term care is going to be for Alzheimer’s or dementia patient. So what steps do you think, if you feel like Medicaid is going to be in the plans, are there steps now or early in the diagnosis that they should be taking and any thoughts around kind of long-term care planning?

Carol:          Well, I guess it depends a lot on the financial situation. You know, it makes sense to see an elder law attorney early in the process so that you know what to expect down the road, not necessarily that you’re going to take different actions based on what the attorney says, although you might, but at least you have an understanding of what to expect. So you don’t feel this impending sense of doom that’s unjustified. Because if you’re a married couple, we can preserve resources for the spouse at home. If you’re single, we can do some gifting to preserve resources, but I would encourage you not to plan on gifting. I would encourage you to utilize those resources for yourself. You might do gifting for the spouse, but if you’re single, I would encourage you to make sure that you’re using your resources to take care of yourself, not to benefit other people.

Ryan:          Yes, that makes sense. I’m going to unmute everybody again, to give anybody an opportunity to submit a question. I just have one or two more. What are some of the bigger mistakes that you have seen with estate planning of a family, somebody who’s been diagnosed with Alzheimer’s or dementia, what are the things to avoid?

Carol:          I think one mistake and it’s so sad. If people cannot be brutally honest about the capacity, the capabilities of their loved ones, and they appoint someone, or they have wishful thinking about well you know, they appoint their both children to serve as agents when the children never got along before, and they have this wishful thought that, well, I’m going to force them to get along. I’m going to appoint them to act together. Well, you know what? It’s not going to work. It hasn’t worked all their lives; they’re not going to do it now. So people not being brutally honest with themselves about who should be their agent, being worried about hurting a child’s feelings. So naming that child as the primary, when that child is not really capable of serving. Trying to be fair amongst the children and saying, okay, well, I appointed brother as the medical power of attorney. So I’m going to appoint sister as my financial agent. Don’t be fair. Be honest. If sister can’t balance a checkbook, she’s not going to be the one to be in charge of your money. And if brother is afraid to go into a hospital, he’s not the one to appoint, to be your medical agent. You’ve got to look at it realistically, that I think is an unfortunate, it’s just a human nature mistake that people make.

Ryan:          Very good. I think in both of our works in the community, we see a lot of family dynamics and they seem to really come through and you know, kind of the family caregiver role and especially when money is involved. So really good point there. I’ll give everybody just one last opportunity to ask any questions. Does anybody else have anything for Carol before we let her go?

I think that’s all the questions I have. It’s definitely been a great resource. I know on the projects that we’ve worked together and supporting family caregivers you just have a really great heart for service, and I appreciate you being here today. And we are going to have this video conference on YouTube. So you can check back at Carol’s website, assistingseniors.com or Griswoldsa.com, the Griswold Home Care website, so you can kind of re-watch and pick up on anything you might’ve missed. But with that, we’ll go ahead and close the meeting. Do you have any final thoughts, Carol?

Carol:          No. Thank you very much for doing this. You’re great resource too.

Ryan:          Oh, we appreciate it. And thanks everybody on the line for joining us. Feel free to submit questions through email. You can find us, like I said at those two websites and we would be happy to be a resource for you as well. So I’ll go ahead and dismiss the meeting and I hope everybody has a good afternoon.

Carol:          Thanks.