Q. I lost my job due to the Covid Pandemic, and now find that I am having difficulty paying my rent. I am worried about being evicted from the home my wife and I are renting. Is there any advice you can offer?

A. Yes. County and State-wide eviction moratoriums have just been extended to the end of the year, at a minimum. Further, the Federal Government, acting through the Center for Disease Control (“CDC”), has just issued a nationwide halt to all residential evictions throughout the country until December 31, 2020, for eligible renters. The qualifications for this relief differ slightly with regard to each set of emergency orders, but qualifying under at least one Emergency Order (“EO”) should be relatively easy for most folks.

Here is a more detailed breakdown:

Alameda County’s Emergency Order: Under Alameda County’s EO, a landlord may not evict a tenant for failure to pay rent between March 24 and September 30, and also grants the tenant a full year to pay the overdue rent.  The moratorium now runs through December 31 “or 60 days after the state of emergency is lifted”, whichever is later. Of note is that some cities, notably Oakland, have their own moratoriums, with even stronger tenant protecitons.

State of California EO:  On August 31, 2020, Governor Newsom signed an EO protecting tenants from eviction and property owners from foreclosure due to the economic impact of the COVID-19 crisis.  The Order offers eviction relief which varies slightly depending upon when the rent arrearages accrued:  (1) for a COVID-19 hardship that accrued between March 4 and August 31, 2020, the tenant must provide a declaration of hardship; and (2) for one that accrues between September 1, 2020, and January 31, 2020, the tenant seeking relief must pay at least 25% of the rent due in order to avoid eviction. Landlords must provide their tenants with notice of their new rights under the Act and must provide hardship declaration forms.  This bill (AB 3088) also extends anti-foreclosure protections to homeowners under the Homeowner Bill of Rights Act.

Federal CDC Nationwide EO: Under its authority to control the spread of COVID-19, the CDC has also just issued its own moratorium on residential evictions, and the ban has nationwide effect. Its order, just issued a few days ago, is effective immediately, and prevents the eviction of tenants through the end of this year. To qualify for this relief, the tenant just sign a declaration as to income: a single tenant must declare that he/she earns no more than $99K a year, while couples filing taxes jointly must declare that they earn less than $198K per year.  They must also declare that they cannot pay their rent in full; that, if evicted, they would become homeless or be forced to move into congregate housing; and, that they made an effort to receive government assistance.  Note:  a previous federal eviction moratorium granted as part of the CARES Act ended in late July, 2020, and only applied to federally-funded or mortgage backed housing. Now, the newly issued CDC Order applies to all residential housing throughout the country.

As soon as available, we hope to have the requisite Emergency Orders and Declaration forms available for download by accessing this article on our website.

So, to your question: you have at least three layers of government moratoriums, County, State and Federal, to look for help.

References: CDC Ban as it appeared in the Federal Register. Scroll down to Attachment “A” for the wording of the necessary CDC Declaration;

Governor Gavin Newsom signs statewide eviction ban and foreclosure protections; California’s “Tenant, Homeowner, and Small Landlord Relief and Stabilization Act”; Text of California’s AB 3088: for the necessary recitals for the Declaration, scroll way down to § 1179.02(d) of the amendments to the Code of Civil Procedure.

“A Guide to Oakland’s Moratorium”.

“Resources for Advocates Assisting with Eviction Prevention”, by National Center on Law & Elder Rights.

Q. My wife has been in nursing home for about 6 months, and I haven’t been allowed to see her since March due to COVID-19. The facility has been in “Lockdown” and won’t permit visitors. I really miss her. Is there any way to get around this?

A.  Yes, there may well be a way to work around this blanket ban on visitation. The California Department of Public Health (“DPH”) just released a new directive which provides for both indoor and outdoor visitation, depending upon conditions. That directive is addressed to “Long Term Care Facilities” and, on its face, would primarily apply to nursing homes, but its directives should also guide other facilities, such as Assisted Living Facilities. In part, that directive provides for “Exceptions” to the visitation ban, and mandates rules for both “inside facility visitation” and for “outside” visitation, which I summarize as follows:

Exceptions: The list of exceptions to the ban includes health care workers, the Ombudsman, visitation for end of life, and –most interesting to me and my colleagues—visitation to take care of “legal matters that cannot be postponed.. such as estate planning”.

Inside Visitation: The directive requires the Nursing Home (more properly called a “Skilled Nursing Facility” or “SNF”) to allow the resident to designate one visitor for inside visitation, but subject to conditions, among them: absence of new COBID-19 cases in the SNF for 14 days. The SNF “shall” also offer alternatives for other visitors, e.g. virtual visits by phone or video communication.

Outside Visitation: If the conditions for inside visitation are not met, then the SNF “shall” provide outdoor and other visitation options, including:  allowing visits on the facility premises where there is 6 feet or more of physical distancing and with the wearing of masks. The outdoor visits may also include visits through a resident’s window.

In all cases, safety guidelines must be observed, such as visitor screening for fever and COVID-19 symptoms, physical distancing, and the need to disinfect visiting areas after each resident – visitor meeting.

The person to person visitation – whether inside or outside—should be arranged in advance with the facility.  If you receive pushback, you might consider sending a written request.  A sample letter, prepared by California Advocates for Nursing Home Reform (“CANHR”) is on its website, and a link to same is on our own website as apart of our on-line version of this article.

Likewise, a copy of the most recent directive from the California Department of Public Health is available on our site, and you may wish to include a copy in your letter. It is identified as AFL 20-22.4 (issued 8/25/2020) and is entitled “Guidance for Limiting the Transmission of COVID-19 in Long Term Care Facilities”.

For those readers whose loved ones are not in SNF’s, but are in other senior care facilities such as Assisted Living Facilities (“ALF’s”), I would suggest referring to CANHR’s guidance on topic. Again, a link to same is in the on-line version of this article on our own website and is in the form of a summary checklist entitled “Visitation Rights in California Long Term Care Facilities During the COVID-19 Emergency”: page 2 has a checklist for visitation rights in “Residential Care Facilities For The Elderly”, which would include ALF’s.

Visitation by loved ones is crucial to the well-being of residents, and I would encourage those visits, albeit with appropriate safety precautions.

References: CMS Guidance to Nursing Homes of 09/17/2020

CA Dept. of Public Health Guidance (8/25/2020); CANHR’s “Visitation Rights In California Long Term Care Facilities During the COVID-19 Emergency”; CANHR’s  “Visitation Guide for California Long Term Care Facilities and Hospitals”; CANHR’s “Sample Letter to Nursing Homes to Demand Outdoor Visitation

Note:  This article appeared in the print versions of the Castro Valley Forum and the San Leandro Times on September 2 and 3, 2020, respectively.

Q. I hear that under the CARES Act, my wife and I may each be able to withdraw up to $100K from our IRA’s without penalty and without tax. Is that true?

A. Well, not quite. Here’s the deal: Under the recently passed Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Congress did recently pass legislation permitting IRA plan owners who experienced adverse financial consequences as a result of the COVID-19 Pandemic to each withdraw up to $100K this year from their own retirement plans, (1) without having to pay the 10% penalty that would otherwise apply for those persons under age 59.5, and    (2) to ultimately do it income tax free provided that they fully repay these withdrawals within 3 years (i.e, before 12/31/2023).  But here’s the rub:  until those funds are repaid, the distributions would be taxable income, reportable on your Form 1040, and tax would have to be paid on them!

For those persons able to fully repay these distributions within the 3 year window, they would ultimately get to do it “tax free” if they then went back and amended each of their tax returns for years 2020, 2021, and 2022, to thereby recover the income tax paid in each of those 3 years. In essence, they would then have received an interest free loan from their own IRA’s.

However, my concern is that many folks who might opt for this withdrawal will later be unable to fully repay it, and will then be stuck with the income tax that they paid in each of those intervening three years.  As I see it, that is the big downside.

That said, taking advantage of this benefit might make sense in the following limited situations:

1) You are in dire need of funds and are OK with taking a loan from your IRA;

2) You had lower income than usual in year 2020 due to loss of employment or reduced business income, so that your income tax would be less;

3) You had business losses that exceeded income, so that your income was negative and not subject to tax.

Consider, also, the possibility that income tax rates in years 2021—2023, might be higher than they are now, thereby obligating the IRA owner who is unable to repay the “loan” for even more tax than under current law.

In any event, I would strongly recommend that you seek the advice of your tax or financial advisor before going down this path. In most situations, one would need to be especially disciplined about timely repayment to make the withdrawal worthwhile.

Q. If I die without a will, do my assets go to the state? 

A.  Generally, no. The state would be the last potential recipient, and then only if your successors or next of kin could not be located. Here is how your assets would be handled under California law:

Joint Tenancy Assets: Assets held in joint tenancy form, such as “John Jones and Mary Jones as Joint Tenants with Right of Survivorship ” (sometimes abbreviated JTWROS, or merely as “joint tenants”) would go to the surviving joint tenant, and this would be the result even if you had a Will; in essence, the Joint Tenancy overrides a Will. If you are the survivor, then they would go to you and, upon your later demise, would go as your separate property as noted below.

Beneficiary Assets: Assets titled in a manner which designates specific beneficiaries would go to those beneficiaries.  Examples: Financial accounts with “Pay on Death” or “Transfer on Death” designations, insurance and annuity policies, and retirement assets such as IRA’s and 401(k) accounts. Again, the named beneficiaries would take even if you had a Will.

Other Assets: other assets, including those held in your name, alone, would go to your next of kin under the California law of Intestate Succession.  Dying intestate means dying without a Will. In this situation, California law sets out a plan of distribution as follows:

  • Community Property: all would go to your spouse or Registered Domestic Partner (“RDP”) if he/she survived you. If you, yourself, were the survivor, the assets would go to you as your separate property, but subject to the special 15 year rule for a predeceased spouse, as noted below;
  • Separate Property: assets would go to your surviving spouse/RDP and to your children. The allocation would depend upon the number of children you have: (1) if you are survived by a spouse/RDP and only one child, they would each split 50/50; (2) if you are survived by a spouse/RDP and two or more children, your surviving spouse/RDP would receive only one-third and the children would divide the remaining two-thirds.
  • The 15 year rule: if you had a former spouse/RDP who died less than 15 years before you, but left his/her own children surviving, then the portion of your estate attributable to your predeceased spouse would go to his/her surviving children.

If none of the above provisions direct distribution of your estate, then the law looks to your family tree: Ownership would first to your parents if alive, then to your brothers and sisters, then to your nieces and nephews, then to more remote family members in a prescribed order based upon consanguinity. Only if no one in your extended tree can be located, would your assets escheat to the state.

However, this comment is not an invitation to forego making a Will or a Trust, because you would then give up some advantages that they offer, such as: the right to (1) designate your own beneficiaries, (2) name the overseer of your estate, (3) do tax planning, (4) protect the inheritance of children from former marriages, (5) create protective trusts for minors or persons on public benefits, (6) provide management in event of your own incapacity and long term care, (7) the option of avoiding probate by creating a Living Trust, and more.  So, do make that Will or Trust. Remember that a Will, unlike a Trust, generally requires a probate.

Q. We recently engaged you to assist my elderly mother to update and revise her estate planning documents, all while she was a patient in a skilled nursing facility under “lockdown” due to the COVID Pandemic. I appreciate that you were successful, but wonder how you were able to deal with the COVID issues that presented. As you know, I reside in another state and was unable to be present.

A.  Yes, indeed, we were successful, but it took a lot of time to arrange and cooperation from a number of people, including the facility in which your mother resides. Here are some of the key points:

Initial Client Assessment:  In our field, known as Elder Law, we always try to assess the capacity of our client to understand and sign legal documents. As we could not enter the facility to have an in-person meeting with your mother, we used technology to conduct real-time interviews with her using Face Time and ZOOM. In all sessions, I was able to see and interact with your mother in real time and thereby assess her mental capacity, which was excellent.

The Need for the Ombudsman: Another issue was the need to involve the County Ombudsman. California law requires that the Ombudsman (i.e, “Patient Advocate”) to sign off anytime a person in a skilled nursing facility, or hospital, is asked to sign an Advance Health Care Directive. Initially, there was concern that the Ombudsman’s office was itself concerned about entering the facility in order to perform its duty. Ultimately, it secured clearance to conduct a real-time interview with your mother using ZOOM, during which the Ombudsman was able to confirm  that your mother was making the Directive “of her own free will”. The Ombudsman then “signed off” and transmitted her signature to us via email for inclusion in the final document. Without the Ombudsman’s willingness to participate remotely via ZOOM, we would not have been unable to complete the  Directive in compliance with California Law.

Testing for Illness. Not surprisingly, to begin the signing process, the facility took everyone’s temperature outside and asked all to complete a form indicating no exposure to anyone with COVID like symptoms.

The Signing Table:  The next challenge was to figure out a way that your mother could sign legal documents in the presence of the notary and witnesses, as appropriate, while still observing safety protocols, i.e. masking, social distancing,  and the like.  Initially we considered having the notary and witnesses stand outside her window, but then discovered that her window had a permanent screen, which would prevent the passing of documents back and forth.

The solution was for mother, the notary and witnesses to meet just outside her room on the patio, where there would be no obstruction by the window screen. The facility provided a large folding table, which permitted your mother to sit at the table, and for the notary and witnesses to move toward the table just to sign and to then move immediately back, a safe distance again, when their signing job was complete.

On Site and Remote Supervision:  To make this work, my legal secretary was present during the entire session with her iPhone running Face Time while connected to my own I-Phone, allowing me to supervise the signing remotely from my home office. Both my secretary and I examined each signing page before moving on to the next document.

The Facility’s CooperationWe were fortunate in having the cooperation of your mother’s facility, Baywood Court in Castro Valley. For the approximate two and half hours that the signing process took, it designated a staff social worker to be right there with us, and another tech with IT skills to facilitate the Zoom session with the Ombudsman.  Kudo’s to Baywood Court!

So, it was a joint effort and everything fell into place. Your mother was very pleased, and actually so were we.

Q.  I heard that the proposed CA Budget cuts to the Medi-Cal program are now off the table. Is that true?

A.  Yes!  Some background:  Faced with a proposed $54 Billion Budget Deficit, last month Governor Newsom had proposed drastic cuts to Medi-Cal and other social programs that serve low income seniors and the disabled. Fortunately, the California State Senate and Assembly just soundly rejected those cuts included in the Governor’s “May Revise” Budget. Instead, they agreed to a budget deal that would address the deficit by relying, instead, on a combination of drawing on reserves, borrowing from special funds, temporary furloughs for state workers, limiting corporate tax credits and relying upon Congress to pass a relief package for states and local governments. This is very good news. It means that the proposed cuts to Medi-Cal and most other social service programs are now off the table. However, a part of the deal was that the Governor could still make these cuts effective July, 2021, if state finances do not approve.

Here is a list of what was saved:

1) Home and Community-Based Services (aka, adult day care)

2) The Multipurpose Senior Services Program (“MSSP”)

3) The In-Home Supportive Services Program (“IHSS”);

4) SSI/SSP:  Current SSI/SSP benefit levels will remain;

5) Other Senior Programs:  the budget preserves senior nutrition, caregiver resource centers, Long-Term Care Ombudsman Program, aging and disability resource centers, and Independent Living Centers.

6) Increased Income Limits to qualify for the “Aged, Blind and Disabled Program”, slated for August 1, 2020, is still on schedule, which will permit more seniors to qualify for ‘No Share of Cost Medi-Cal’, as well as dental benefits.

7)  Very important:  the deal avoided reinstatement of the old, draconian pre-2017 rules, which allowed the state to recover the value of Medi-Cal nursing home benefits received during lifetime, which claims often resulted in the forced sale of homes and the displacements of low income families after the death of their loved ones.

This Budget Deal is a very big deal, as the May reductions proposed to target some of the most vulnerable seniors and the disabled.

Unfortunately, the budget did not include extending Medi-Cal coverage to undocumented senior immigrants, but it does include intent language to do so should funding become available.

Saving these programs was the result of an effort by many well community groups, citizens who called their legislators, and the good will of our Governor and Legislators.  As Hilary Clinton once said, it “takes a Village” to preserve our community.

One important related event:  By directive from the Governor and ruling from Medi-Cal, almost all negative actions are on hold to ensure that individuals retain coverage during the COVID-19 Pandemic emergency.

References: Justice in Aging Summary; Center for Elders Independence “Adult Day Health Centers Spared“; Governor’s Budget Summary as of 05/14/2020 (before recent compromise); Medi-Cal Eligibility Information Letter No: I 20-08 (April 10, 2020), to prioritize “eligibility determinations for new applications”, immediate need requests, restoration of benefits, and to avoid negative actions and coverage gaps.

Q. I hear that Medicare has announced that, due to the Corona Virus Pandemic, it will now be more generous in covering nursing home stays by relaxing some of its long-standing coverage requirements. Do you know anything about this?

A. Yes. A bit of background may be helpful. Medicare has traditionally imposed three conditions as prerequisites to covering nursing home care, more properly known as Skilled Nursing Facility (“SNF”) coverage:

(1) The 3 Midnights Rule:  The patient must have spent at least three (3) nights in the hospital as an admitted patient before being discharged to a nursing home (aka a Skilled Nursing Facility, or “SNF”);

(2)  100 Day Cap For Single Spell of Illness:  The duration of coverage would not, in any event, last longer than 100 days for a “single spell of illness”. That 100 day limit could only be extended in the rare case where the patient established a new benefit period by “breaking” that single spell of illness. A break occurs where he or she was discharged from the SNF to either return home, or to a custodial care setting, for at least 60 continuous days. In the rare case where that break occurred, only then could the individual re-qualify for another SNF benefit period of up to 100 days. However, see “New Development“, below ; and

(3) Must Need Skilled Care:  The coverage, in any event, would be for only for so long as the SNF patient needed skilled therapies (e.g. Occupational Therapy, Physical Therapy, Speech Therapy, wound care); when it appeared that the patient needed only custodial care, Medicare coverage would end even if before the 100 day limit.

New Development as of 03/13/2020:  Because of the Corona Virus Pandemic, the Administrator of the Center for Medicare & Medicaid Services, Seema Verma, recently announced major changes in how Medicare covers SNF level care:  On behalf of Medicare, she has now eliminated or substantially relaxed the “3 Midnights Rule” and the “Single Spell of Illness” rule. Thus, to qualify for SNF level Medicare coverage now, an individual need not first spend three nights in the hospital. Likewise, he or she can now receive a second benefit period of up to 100 additional days without first needing to return home for 60 days. Further, the federal CMS Agency has just released clarifying Questions and Answers. In particular, the extension does NOT depend upon having a COVID-19 related illness. See the link in the References section, below.

However, the requirement that the individual must still show the continued need for skilled care, as opposed to custodial care, remains in effect. Thus, if the individual were granted a second 100 benefit period of coverage, but was unable to fully participate in physical or occupational therapies during that new benefit period, then coverage would still end before the full 100 day coverage extension. Thereafter, if his doctor still felt that he still needed care in the nursing home, the individual would then have to either pay from his or her own funds or apply for Medi-Cal coverage.

Remember:  Medi-Cal – unlike Medicare—will pay even for custodial level care for those who financially qualify, and for so long as needed, even if it be for the remainder of an individual’s lifetime.

References:  Letter from Seema Verma, Administrator, Center for Medicare & Medicaid Services, 03/13/2020; Article by American Health Care Association; Questions & Answers about the Medicare Rule. See, the Q&A on page 98: The Q and A reads as follows:

“Y. Skilled Nursing Facility Services 1. Question: Does the section 1812(f) waiver for the 3-day qualifying hospital stay apply only to those beneficiaries who are actually diagnosed with COVID-19, or does the waiver apply to all SNF-level beneficiaries under Medicare Part A? Answer: The qualifying hospital stay waiver applies to all SNF-level beneficiaries under Medicare Part A, regardless of whether the care the beneficiary requires has a direct relationship to COVID-19. See: https://www.cms.gov/About-CMS/AgencyInformation/Emergency/EPRO/Current-Emergencies/Current-Emergencies-page

Q. I hear that there is some news from Social Security, in that it will now allow recipients to name a Representative Payee in advance of actual need. Is this important and do you know about it?

A. Yes, and it is considered a major change for social security. So, first, let’s address what a Representative Payee is:

In the Social Security system, a representative payee is a person or organization appointed to receive funds for someone, who is unable to manage their own money or pay their own bills. A representative payee (“RP”) would have the power and the responsibility to manage those funds for the beneficiary’s benefit, whether thye be Social Security Retirement, Supplemental Security Income (“SSI”), or Special Veterans Benefits. The RP is essentially a fiduciary for the beneficiary and must be careful about handling the beneficiary’s money, must keep good records, and make annual accountings to social security as to how the money was spent.

Up until now, anyone could apply to be the RP for a beneficiary who was deemed unable to manage his or her funds, which could encourage “bad actors” to get involved. Further, there was no mechanism for a competent recipient to make an advance designation as to who should be his or her RP. In this respect, the situation has always been very unlike the advance designation that one could always make in one’s estate planning documents as to who would his or her Trustee, Executor, Agent Under Financial Power of Attorney, and Agent for Health Care.

But now you can!  This new right stems from the “Strengthening Protections for Social Security Beneficiaries Act of 2018”, and now allows you to choose an individual to manage your benefits whom you know has genuine concern for your well-being, should the need later arise.  The advance designation can be made by competent adults and emancipated minors. You may select up to three individuals, in the order that you designate.  If the need later arises for an RP, social security will contact those individuals on your behalf, but will still verify that they are suitable to serve.  In addition, social security will send an annual reminder to you of your designations, so that you can update their identities and contact information as necessary.

You can make an advance designation in one of the following ways:

1) Online using your personal “mysocialsecurity”(www.ssa.gov/myaccount);

2) By telephone at 1-800-772-1213 (TTY: 1-800-325-0778);

3) In Person by going to your local field office, but only after it reopens following the COVID-19 closures.

So, along with your estate planning designations, you can now also do so as to your social security benefits. This is an important change for social security.  Further, the process on line is simple and can usually be completed in less than 10 minutes.

Q.  My wife and I signed our estate planning documents quite some time ago. In view of the current COVID-19 Pandemic, we wonder whether there are any revisions we should consider?

A. Excellent question. The short answer is, “Yes”. Here are some specific suggestions relating to some important estate planning documents which you probably signed:

Durable Power Of Attorney: As you know, a Durable Power Of Attorney (“DPOA”) allows you to nominate an Agent who will act for you in managing your financial affairs if you become unable to do so, yourself.  Many of these documents are what we call “springing” DPOA’s, in that they only “spring to life” if you lose capacity. Your loss of capacity would typically be certified by one, or possibly two, examining physician(s). In the current chaotic environment of the COVID-19 Pandemic, getting letters from physicians may be difficult. Consider changing your DPOA so that you designate your Agent to have immediate powers, as this will eliminate the need for doctors’ letters.  Note: just because you designate your Agent to have immediate powers does not mean that you have surrendered yours. It is like having two sets of cars keys to the same automobile. Each of you would retain powers. Obviously, you would only do this if you have total trust in your designated agent.

Trust:  You might consider something similar if you have a Trust and have nominated a successor Trustee to take over upon your incapacity. Instead,  consider elevating the Successor to the status of a Co-Trustee, with recitals that trust affairs can be managed by either one of you.

Advance Health Care Directive: An Advance Health Care Directive (“Directive”) appoints a Health Care Agent to speak for you in regard to medical treatment in the event you are unable to do so, yourself. Usually your Agent would meet personally with your physicians to convey your wishes, especially in a critical care situation. However, in the current environment, meeting personally may not always be possible, especially if you were in a hospital setting, and even more so if you contracted the Corona Virus and were in quarantine. Consider authorizing your Agent to communicate with your doctors by electronic communication, video, or  other alternate means of communication, as an alternative to a personal meeting, so that your wishes can still be honored. You might also express your wishes about being intubated and connected to a ventilator to save your life. There is growing concern that being on a ventilator may result in lasting disability for the patient, even if he or she recovers from the virus.

POLST: Many patients, especially if they are in a hospital or critical care setting, have signed a “Physician Order for Life-Sustaining Treatment” (“POLST”). A POLST is a two-way statement between you and your doctor which expresses your wishes on end-of-life care. Unlike the health directive, it carries the weight of a Physician’s Order, and usually is prominently positioned in your medical file on bright pink paper so that it can be easily retrieved. Studies indicate that these Physician’s Orders are generally honored more frequently than wishes stated in a  Health Directive. Importantly, many POLSTS contain prohibitions on intubation, and this may be the very thing that a doctor might prescribe if you contracted the virus, especially if you need to go on a ventilator.   Discuss changes as appropriate with your doctor and then sign a new POLST.

Consider these changes now and chances are that you and your wife will feel much better about your preparedness.

Q. My mother resides in a nursing home where she receives the care that she needs. However, we worry about the risk of her getting ill from the Corona Virus. Should we bring her home?

A. That is a difficult decision, but here are some thoughts:

The number of coronavirus cases in nursing homes and assisted living facilities across the country continues to grow. A Washington state nursing home was one of the first cluster of coronavirus outbreaks reported in the United States, with at least 37 deaths associated with the facility.  NBC news reported on April 16 that coronavirus deaths in long-term care facilities across 29 states had soared to 5,670.

In an effort to contain the virus’s spread, most long-term care facilities are limiting or excluding outside visitors, making it hard to check on loved ones. Social activities within the facility may also be cancelled, leading to social isolation for residents. In addition, long-term care facilities face staffing shortages even in the best of times. With the virus affecting staff as well as residents, facilities are having trouble providing needed care. Assisted living facilities, which are not as heavily regulated, may have greater trouble containing the virus than nursing homes, because their staff is not necessarily medically trained. Still, most staff do try to observe basic protocols with protective masks and gloves.

With this in mind, many families are considering bringing their loved ones home. Before taking this extreme step, however, you need to consider the following questions:

  • Is your family able to provide the care that your loved one needs? Some patients require help with eating, dressing, medication, and going to the bathroom. You need to consider whether you can adequately provide that care at home. In addition to your loved one’s practical needs, you need to think about your physical and emotional stamina. Can you lift your Mom to assist her out of bed? Can you rent or purchase a mechanical list for her room to assist? Is your house set up to safely accommodate her? Are there a lot of stairs? Does the bathroom have rails? If your loved one has dementia, there may be other considerations to take into account.
  • How well can you prevent infection? Will you be better able to prevent infection in your own home, than a nursing home? If your entire household is homebound, you may be in a good position to prevent bringing home the virus. However, if one or more members of your household is working outside of the home in an essential business, you will have to take extra precautions to make sure he or she don’t bring the virus home to your loved one. Are you taking the necessary precautions to keep your house and yourself disinfected?
  • Big Question: Will your mother be allowed to return to the facility when the threat of the virus has abated? If you take your family member out of the nursing home or assisted living facility, the facility may not let your family member back in right away. You should check with the facility to determine if your loved one will be able to return.

Bringing a family member home is a difficult decision, which depends upon the individual circumstances of each family. Unfortunately, the choice is not an easy one.


Thanks to Harry Margolis, Esq., of MA for permission to use and modify this article.