Posts By: Gene Osofsky

Many of our clients and readers are caregivers of elderly parents; they have chosen to take responsibility for their parents—whether it be physical responsibility, financial, or other. But what if instead of making that choice, you had responsibility for your aging parents thrust upon you? This is exactly the issue addressed in this recent article from Elder Law Answers.

“John Pittas’ mother entered a nursing home for rehabilitation following a car crash. She later left the nursing home and moved to Greece, and a large portion of her bill at the nursing home went unpaid. Mr. Pittas’ mother applied to Medicaid to cover her care, but that application is still pending. Meanwhile, the nursing home sued Mr. Pittas for nearly $93,000 under the state’s filial responsibility law, which requires a child to provide support for an indigent parent. The trial court ruled in favor of the nursing home.”

The article points out that many states still have filial responsibility laws on the books, but that those laws are rarely enforced. This ruling by the Pennsylvania Supreme Court does not bode well for Baby-Boomers, many of whom are finding themselves caught between caring for elderly parents and for grown children who have not yet left the nest.

Perhaps one of the most disturbing things about this case is that the nursing home was given so much leeway. The Pennsylvania Supreme Court found that “the law does not require [the nursing home] to consider other sources of income or to wait until Mrs. Pittas’s Medicaid claim is resolved.” This would seem to condone (if not encourage) a litigious mind-set among nursing homes. As if this weren’t bad enough, the court “also said that the nursing home had every right to choose which family members to pursue for the money owed.” If you are one of many siblings you could find yourself involved in a lawsuit merely because you live the closest, are the wealthiest, or called mom more often than your brothers or sisters.

California has not yet seen a lawsuit which goes as far as the case in Pennsylvania, but the law is on the books and only time will tell if this becomes an inssue in our state.

Meanwhile, the best way to ensure that your family doesn’t find itself embroiled in a similar lawsuit is to ensure that you (or your elderly parents) have a plan in place to pay for long-term care. That plan may include making a timely application for a Medi-Cal subsidy where appropriate.

Posts By: Gene Osofsky

Divorce is difficult on a family no matter what the circumstances. Even when a divorce is best for all involved, there is always an amount of stress and emotional trauma involved. In fact, it has recently become apparent that the effects of divorce—stress, family upheaval, and tighter finances—can last years into the future. 

Adult children of aging parents often find themselves caring not only for mom and dad but also for stepmom, stepdad and sometimes even another stepparent from yet a third (and current) marriage. Dividing time (and often finances) between so many parents with new and special needs can quickly take its toll, as can the family politics that come with adult siblings, half siblings, and step siblings.

With all of this complexity and intermingling family ties, it is more important than ever to have conversations about estate planning and long-term care with parents and siblings before mom and dad (and stepmom and stepdad) get to an age where they need in-home or around the clock nursing care.  A good estate plan can eliminate much potential fighting and confusion by clearly defining who will be making financial decisions and who should be making health care decisions when mom or dad become incapacitated.  A caregiver agreement can provide financial assistance to the one sibling who inevitably ends up shouldering most of the care giving burden.

If you are a part of a blended family don’t wait for time to take its toll; talk to your parents and siblings now about any challenges the future may bring—and how to meet those challenges together.

Posts By: Gene Osofsky

If you are a Caucasian woman, aged 50 or older, possibly married, very likely working full or part-time—then there is a good chance that you are also (or will soon be) serving as a caregiver for an aging parent or relative. At least this is what a recent report released by the National Alliance for Caregiving, AARP, and MetLife indicates.

The entire report, entitled “Caregiving in the U.S., A Focused Look at Those Caring for Someone Aged 50 or Older” is 73 pages long, but you needn’t read the entire thing to get an insider’s peek at the state of caregiving today.  And the report isn’t limited to caring for an aging relative; it includes statistics on those caring for special needs children, as well as family members of any age.

Some of the more interesting statistics listed in the report are:

* 40% of Caregivers are aged 50-64, and 26% are even younger (35–49).

* 63% of those receiving care are over the age of 75.

* 67% of Caregivers are women.

* 76% of Caregivers are Caucasian.

* 89% are caring for a relative (36% of the time it is the caregiver’s mother.)

* Over half of caregivers are employed while caregiving; and…

* Caregivers provide an average of 19 hours of caregiving per week (in addition to their regular employment.)

It is worthwhile to note that according to this study most of these caregivers are unpaid for the care they give, as they are caring for a family member and are doing it voluntarily—but a full 43% said that they felt they did not have a choice to take on the role.

Our office can’t prevent you from one day needing a caregiver (or one day having to serve as a caregiver) but we can help you plan for when that day may come.  Thinking and planning ahead can keep you—and your loved ones—from ending up in a situation where you feel you have no choice.

Posts By: Gene Osofsky

Many of our clients provide care for elderly loved ones; some even providing constant, around the clock care.  Care giving is a demanding, overwhelming, and often grossly underappreciated job.  In addition to giving up their own time and interests, caregivers have to watch someone they love slowly regress and lose the ability to do even the most basic of tasks.  Often, the senior being cared for eventually loses their ability to even recognize the people around them… including the person giving constant loving care.  For all of these reasons, it’s very common for caregivers to experience depression and fatigue… caregiver burnout.

Depression and burnout does not have to be the plight of all caregivers, especially if you know the symptoms and how to combat them. The good news is that there are many preventative strategies which are readily available… the hard part for caregivers is valuing their own time and mental health enough to take advantage of them.

One of the best ways to avoid caregiver burnout is by making time for yourself periodically. Adult day service centers provide personal care, social activities, therapy and meals during the day while caregivers need to be away at work or even taking a much-needed break.  If you have a parent who can no longer care for themselves during the day, adult day services might be a good solution for everybody involved.

There is a saying that hardships shared are halved, and joys shared are doubled; this is as true of care giving as it is for anything else. Many caregivers are reluctant to ask for help, but sharing the burden could save you from caregiver burnout.  Don’t be afraid to reach out.

Posts By: Gene Osofsky

A funeral comes at a time when the death of a loved one is recent and close, and many people are still in shock and in some cases struggling with the reality of loss.  Funerals help grieving loved ones come to terms with death and say their final goodbyes… but for the person planning the funeral the experience can sometimes be a frustrating, painful, and expensive experience. Planning ahead for your own funeral—discussing it with your loved ones and even including your wishes in your estate plan—can remove this burden from their shoulders when the time comes.

Although pre-planning a funeral is essential, pre-paying for a funeral can actually be detrimental.  According to The Funeral Consumers Alliance there are just too many things that can go wrong, “[prepaying for] funerals may not cover every item of service you and your family expect, and there’s often no guarantee the money you pay today will keep up with inflation to pay the cost of the service you’ve picked out.” In addition, “many state laws don’t offer much protection for your prepaid funeral money.” If you change your mind or move out of the area there’s no assurance that you’ll get your money refunded. That being said, although pre-paying may be a no-no, setting aside funds for a funeral—in an account, CDs, or a specially designated insurance policy—is always a good idea. Consider setting aside funds in a Pay-On-Death bank account: the funds would be immediately payable on your death to someone you trust, who then would use them to pay for your funeral expenses. The POD account is sometimes called a “Totten Trust” account.

In just about every will or trust you will find something about the estate “paying the deceased’s final expenses,” otherwise known as funeral and/or memorial costs.  As a small portion of what can sometimes be a very large and intricate document, this “final expense” clause can seem unimportant—but our firm knows better.

Talking about your wishes for “final disposition of your remains” is something that should always be discussed with your estate planning attorney. Whether you choose to pre-plan your funeral or not, having some basic instructions in your will or health care directive for your preferences regarding burial, cremation, organ donation and so on will be a huge help to your loved ones during a difficult and emotional time.

Posts By: Gene Osofsky

Anyone who has lost a close friend or family member knows that what a difficult, painful, and overwhelming time it can be. We are often asked to help our clients through estate administration process when a loved one dies, but probate isn’t the only thing you’ll have to think about; in fact, it may not even be the first thing you should think about. We know that nothing can make this process easy, but we hope this brief guide can help make the process of dealing with the death of a loved one somewhat less overwhelming.

1. The first thing you’ll want to do is call close friends and family. They will share in your grief, and they can also share the responsibility of notifying others.

2. Contact a funeral director. This person can help walk you through the process of planning a memorial, making burial arrangements, and even writing an obituary. This can often be the most overwhelming task, not because it is particularly difficult, but because it has to be done so quickly; sometimes before the reality of death has had a chance to sink in with the survivors.

3. Find out if your loved one had a will. Contact their attorney (if they had one) and make sure you have the original for the probate court. If you aren’t sure how to file the will with the probate court you can contact an attorney, or check the website of the local superior court in the county where the deceased person resided.

4. Order multiple copies of the death certificate. You will need these for the insurance company, as well as for some of the steps below.

5. Collect the mail and contact all utility companies, credit card companies, debt collectors, etc.; call to notify them of the death and stop services.

6. Go through the deceased’s files and paperwork. This can be tedious, time-consuming, and confusing, depending on how organized your loved one was. This is important information you (or the executor or trustee) will need to file final tax returns and pass on to the probate court, so don’t be afraid to ask for help when you need it.

Dealing with the death of a loved one is one of the most difficult and overwhelming things you may ever have to do. If you are having a particularly hard time with the grieving process don’t be afraid to ask others to help with the more difficult items, or to hand the list over entirely to someone else if you feel unable to cope. This is when your own elder law or estate planning attorney (or the deceased’s attorney, if they had one) can be especially helpful.

Although it sometimes feels as if time should stand still when someone we love passes away, life does go on, for better or worse. But the world is full of caring and knowledgeable people to help you through the process… if you only know where to look.

Posts By: Gene Osofsky

The question of competence has become a very big issue in the estate planning/elder law world over the past few years. As the population ages, and awareness of Alzheimer’s and dementia diagnoses grow, more and more adult children are questioning the ability of their elderly parents to make legal and financial decisions. Some children are unhappy with the choices their parents make; but most are simply concerned, and want to ensure their parents are not working in confusion against their own best interests, or being taken advantage of by others.

Estate planning attorneys must assess the competency of every client before they sign any documentation, and most attorneys can confidently make this assessment based on observation, experience, and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.

If you are worried about the competency of your loved one here are a few things to consider:

* Does he have the ability to articulate the reasoning behind a decision?

* Is his state of mind fairly stable, or do his moods and opinions change frequently and without cause?

* Does he appreciate the consequences of any given decision?

* Does he understand when a decision is irreversible?

* Does he recognize the substantive fairness of a transaction?

* Is his current decision-making consistent with his previous lifetime commitments?

In order to determine whether or not a person is competent to sign a will or trust, however, an assessment should be much more focused:

* Does the principal have a clear knowledge of his assets?

* Does he have a full knowledge of the persons to whom the estate is being left?

* Is he able to reasonably formulate and express a plan for the disposition of the estate?

The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to express your concerns to your attorney, and have a mental examination performed by a doctor. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.

Posts By: Gene Osofsky

Clients sometimes ask about the wisdom of giving their home to their children, usually in order to avoid probate and “simplify” things after the parent’s demise. However, this is not usually the best plan and doing so can often result in unintended tax consequences for the recipient child.  This is especially so if the parent’s motivation is driven by a desire to avoid a Medi-Cal recovery claim after the parent’s passing.  In most situation,  there are usually better options to accomplish the parent’s goals. See the following article which appeared in the Castro Valley Forum and the San Leandro Times, which addresses this question in a Q&A format.

Posts By: Gene Osofsky

If a family member needs care in a nursing home, you may be surprised by the cost. In our community, the cost of placement even for routine custodial care averages approximately $7,500 per month  for a semi-private room and approximately $8,500 per month for a private room. Most families cannot afford this expense without  impoverishing the at-home spouse or other family members. Families in this crisis situation often call our firm for help. The good news is that, with proper planning, many middle income families can actually qualify for government assistance under the Medi-Cal program. The further good news is that qualification is often possible even where the family has been told that they have too much in the way of assets to meet the eligibility rules. See this article published in the Castro Valley Forum.

Posts By: Gene Osofsky

According to a recent article on BusinessInsider.com, there are some surprising new figures about American households and their pets. “In 2011, Americans spent a record $50.8 billion on pets, according to the American Pet Products Association. We share our homes with an estimated 86 million cats, 78 million dogs, 16 million birds and 160 million fish.”

These numbers perhaps aren’t so shocking when you consider how the role of animals in our lives has changed over the past few decades. Animals have gone from being mere pets or farm animals to being companions, guides, status symbols, and in most cases beloved members of the family. As such, most pet owners want to provide for them as they would a human member of the family.

Unfortunately, as mentioned in the article, “While we may consider our pets family members, our legal system considers them property. And because estate law prohibits us from leaving property (money, real estate, etc.) to property, we must instead provide for our pets through human intermediaries.” The best way to do this is through a pet trust, in which you can nominate a loving caregiver for your pet, as well as set aside some money to be distributed to the caregiver—either in one lump sum or in smaller distributions throughout the life of your pet.  Click here for an article on Pet Trusts.

A pet trust may be the most reliable way to ensure your pet will be provided for, but it certainly isn’t the only way. Another option is to simply name a caregiver for your pet in your will or trust and then include the caregiver as a recipient of funds in your will. For example: “If my cat Fluffy is alive at my death, I leave $3,000 for her care to Mary Johnson.” If you have more than one person who might serve as caregiver you should consider also naming back-up caregivers in the event that your first choice is unwilling or unable.

Pets provide so much unconditional love and support during our lives, the last thing we want is to leave them without a friend to care for them after our deaths. The next time you review your estate plan or talk to your attorney, be sure you’ve included a provision for your pet.