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A Consumers’ Guide to

Hospice & the Law


Table of Contents JacksonWhite Attorneys at Law Our Elder Law department offers the following services:

Hospice Defined.............................................................

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Paying for Hospice and Long-Term Care.................

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ALTCS Planning Probate Public Benefits Analysis Special Needs Trusts Conservatorships & Guardianships Estate Planning Trust Administration & Litigation Elder Abuse & Exploitation Veterans’ Asset & Income Planning

Summing up Benefit Programs ..................................

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Dealing with Probate ...................................................

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Preparing Advance Directives .................................... 13 Applying for Guardianship or Conservatorship.....

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Minimizing Tax Liability ................................................ 16 Updating an Estate Plan ..............................................

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Planning for a Child With Special Needs.................. 18

Other Legal Services In addition to Elder Law, JacksonWhite has attorneys practicing in the following legal areas: Business/Corporate Law • Commercial/Civil Litigation Construction Law • Criminal Law • Eminent Domain Employee Benefits • Financial Institutions Creditor/Debtor Issues • HOA Law • Chapter 7, 11, 13 Bankruptcy Insurance Related Disputes • Tax Law Family Law • Labor and Employment Law Real Estate Law • Small Business Representation Mediation Services • Personal Injury

What to do When a Loved One Dies...................... 18 For the Family ...............................................................

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Why Plan Now? ............................................................ 21 © 2012 Jackson White P.C. All rights reserved. This publication is provided for informational purposes only and should not be construed as individual legal advice. Please consult a knowledgeable attorney regarding your specific legal needs.

For more information on these practice areas, call the JacksonWhite Elder Law department at 1.800.243.1160. Hospice & the Law

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Hospice Defined

Introduction

Richard A. White Shareholder & Elder Law Attorney

JacksonWhite Attorneys at Law

In certain situations, hospice care can provide an excellent alternative to traditional healthcare. Instead of focusing on curative treatment, which is sometimes impractical, hospice care focuses primarily on quality of life. The idea is that some patients have more to gain from symptom management and comfort care than from speculative and oftentimes even futile procedures. While hospice is certainly not for everybody, greater access to information about hospice could go a long way towards helping people get the care that best suits their specific needs.

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Hospice & the Law

There are many issues that surround hospice care. In addition to medical questions, most hospice patients and their families have legal issues that arise in this stage of life as well. With so many potential questions and issues, it can be difficult for people to find all of the answers they are seeking. It is with this in mind that JacksonWhite offers this guide. This brief but informative guide is designed to provide a broad overview of some of the more common questions that hospice patients and their families have. Individuals with more specific questions can visit JacksonWhite’s Elder Law website, www.ArizonaSeniorLaw.com, or schedule a time to speak with one of JacksonWhite’s Elder Law attorneys personally. With tools such as this guide and ArizonaSeniorLaw.com, our hope is to provide individuals with the understanding they need to make informed and wise decisions regarding hospice care.

Hospice Defined What is hospice? Hospice is a unique concept of care that is intended to benefit patients who have entered into their last six months of life. Patients who elect hospice decide to forego further curative treatment in favor of comfort measures. Hospice is a Medicare benefit that is frequently used in conjunction with other benefits, such as Medicaid or Veterans’ benefits. The coordination of all benefits is an important, often vital, part of the complex healthcare journey. The primary objective of hospice is to maximize quality of life at a fragile and overwhelming time. While hospice is not the only healthcare alternative, it is oftentimes the alternative that offers the most dramatic improvements in quality of life. One of the first steps to making informed decisions about end-oflife care is simply discovering what hospice care really is, and then studying the legal issues that can accompany such care. By taking this approach, a person who may

require hospice care can prepare to smoothly transition into this phase of life. Hospice care is an interdisciplinary approach to providing palliative care for people with a terminal diagnosis. While many people think of hospice as a specific place at which patients are treated, it is actually a systematic approach to healthcare, facilitated by a team of experts who work together to maintain comfort and alleviate pain for their patients. The basic premise of hospice is that treating symptoms instead of seeking a cure can allow people to live out the final stages of life in comfort, without the anxiety and unrest that oftentimes accompany invasive medical procedures. Individuals who seek hospice care are not giving up on life; rather, they have come to accept their condition, and are striving to live the remainder of life as comfortably and as fully as possible. Who makes a good candidate for hospice care? Anyone who has a terminal diagnosis, with a prognosis of six months or less to live, can Hospice & the Law

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Types of Care choose hospice care over curative treatment. When making this decision, a person should engage in open dialogue with a physician, as well as with family members, to ensure that hospice is indeed the best option. With a physician’s guidance, individuals can select the hospice agency that best fits their particular situation. Just like with other types of healthcare, hospice care has many options; and anybody considering hospice should gather as much information as possible before selecting a hospice agency with which to work.

and care they are already receiving. Hospice is not intended to cover “everything.”

During the hospice admission process, a member from the hospice team discusses services and care options with the family. Individuals going through this process should not be persuaded into recruiting the services of any particular hospice agency. Those seeking hospice care have a right to choose any agency they wish; while a doctor or hospital can make hospice referrals, individuals can ultimately choose the agency with which they would like to work.

• Physician services and nursing

Importantly, there are many providers of the hospice benefit. Those choosing a hospice agency should consider that this is a service that supplements the insurances

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Hospice & the Law

What services does hospice cover? As mentioned above, the primary thrust of hospice is to provide patients with the comfort necessary to have the best quality of life through their final days. By definition, hospice excludes curative and preventative healthcare, and instead coordinates a full range of comfort care, including:

care

• Homemaker and home-health aid services

• Counseling and social services • Bereavement services and spiritual care

• Medical equipment and

medication for pain management

• Short-term inpatient and respite care

Under Medicare guidelines, patients and physicians can select from four levels of care when creating a treatment plan. These levels of hospice care include:

Routine Care: At this level of care, regularly scheduled physician visits are sufficient to manage the patient’s symptoms. Patients receive routine care in their residence, wherever that may be. Continuous Care: This level of care aims to keep patients in their residence and out of the hospital. It is provided during periods of crisis, and only for long enough to stabilize patients. Inpatient Care: This level of care is provided in a skilled nursing facility or hospice facility to patients whose symptoms require greater attention. This type of care lasts for up to ten days, after which time patients return to their residence. Where patients are already residing in an inpatient facility, Medicare’s hospice coverage will pay for their room and board during the period set aside for hospice care. It is very important to note that hospice does NOT pay for long-term care. Hospice may pick up some care costs but it will not pay for room and board for any significant length of time. This is where coordination with other benefits is crucial. Those who cannot afford the room and board that oftentimes accompanies hospice care will need to look for

other benefits such as Medicaid/ ALTCS to supplement hospice care. Respite Care: This level of care is available to provide family members with time to rest or go out of town. It can last for five consecutive days, during which time patients are treated in a long-term care facility or inpatient hospice unit. How long can a person receive hospice care? Before an agency will admit a patient into hospice care, the patient’s physician must certify that he or she has a terminal illness and is not expected to live longer than six months. Once admitted to hospice care, patients are given treatment in periods of care. Hospice patients may receive two consecutive 90-day periods of care, followed by 60-day periods for as long as they remain terminally ill. Importantly, hospice patients must have a physician certify that they are terminally ill for every period of hospice care. Hospice is not designed to provide services for years on end; patients whose health sees improvement are likely to have the hospice benefit terminated until proper criteria are once again met. Hospice & the Law

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Paying for Care Paying For Hospice and Long-Term Care Medicare Part A covers hospice care Medicare will cover hospice care for individuals who are eligible for Medicare Part A, so long as a physician certifies that they are terminally ill, and they agree to seek hospice care instead of curative care. Medicare members do not pay out-of-pocket costs for the hospice benefit. Medicare pays for all hospice diagnosisrelated services, and patients will not be required to pay more than $5.00 for prescription drugs and 5% of inpatient respite care. Most hospice patients require care above and beyond hospice care, so every hospice patient should consider coordination of benefits. Coordination of benefits In addition to hospice care, many patients also rely on Medicare and ALTCS to cover the cost of their treatment. Medicare will cover the cost of treatment for health problems not related to the terminal illness, but it charges 6 Hospice & the Law

a deductible or copayment for such treatment. Medicare does not cover the costs of long-term healthcare, but ALTCS is available to cover these costs for hospice patients who qualify. Arizona Long-Term Care System (ALTCS) is the branch of Arizona’s Medicaid program that pays for long-term healthcare for eligible individuals. Since Medicare’s hospice coverage does not pay for long-term care services, hospice patients can often benefit from applying for ALTCS. For patients who qualify for ALTCS, Medicare will cover hospice care, and ALTCS will cover the cost of inpatient or outpatient long-term healthcare. ALTCS is always the payer of last resort, so it covers only what Hospice/Medicare does not. Only individuals who meet strict financial and medical requirements are eligible to receive the ALTCS benefit. Those who need longterm care of any kind, be that inhome care, group home/assisted living care, or nursing home care, should undergo prescreening by an Elder Law attorney to determine their benefits options.

Applying for the ALTCS benefit

Applying for Veterans’ Benefits

As mentioned, only ALTCS applicants who meet medical and financial requirements can qualify for the ALTCS benefit. Applicants qualify medically if ALTCS determines that they require nursing home level care.. The ALTCS financial assessment includes a review of the applicant’s (and the applicant’s spouse, if applicable) income and resources. The income and resource limit varies between married and single applicants.To qualify for the benefit, both income and resources must fall below a specified amount, which changes on an annual basis.

Veterans are oftentimes eligible for additional benefits that can help them pay for long-term care. Veterans’ Pension is available to veterans who were discharged from service under other than dishonorable conditions; who served 90 days or more of active duty with at least one day during a wartime period; who are 65 years of age or older; and who meet income and asset requirements.

While these requirements are indeed strict, prospective ALTCS applicants should not be discouraged. JacksonWhite has a team of Elder Law attorneys and professionals with a variety of planning strategies at its disposal to help with the ALTCS process. With proper planning and guidance, ALTCS applicants can qualify for the benefit with as little delay as possible. For more information on ALTCS medical and financial requirements, please call JacksonWhite Elder Law for a complimentary phone consultation with an Elder Care Advisor, or visit www.ArizonaSeniorLaw.com.

VA Pension is a dollar-for-dollar offset program, under which single veterans are eligible for up to $1,021 per month; married veterans are eligible for up to $1,337 per month; and widows of veterans are eligible for up to $690 per month. Importantly, veterans are not required to have a medical need to qualify for Pension; eligibility for this benefit is based primarily on income. Veterans who have a medical need can significantly increase their Pension amount by qualifying for Aid & Attendance benefits. Veterans, as well as widows of veterans, who are a resident of a skilled nursing facility or who require the attendance of a caregiver can qualify for Aid & Attendance by obtaining a physician’s Hospice & the Law 7


Dealing with Probate statement that verifies an existing medical need. Single veterans who qualify for Aid & Attendance are eligible for up to $1,703 per month; married veterans for up to $2,019 per month; and widows of veterans for up to $1,094 per month. Pension and Aid & Attendance can be a wonderful way to supplement the care provided by hospice.

Summing Up Benefit Programs Hospice is indeed a wonderful benefit, but in many cases it is insufficient to cover all of a person’s needs. Even though Medicare covers the hospice benefit itself, it only covers the accompanying care costs for a very short period of time. Medicare typically discontinues long-term care coverage after the passage of only 20-80 days from the date on which the patient enters a long-term care facility. And once Medicare coverage stops, patients have to begin picking up costs that can reach $6,500 per month or more. With the exception of extremely wealthy individuals, benefit programs like ALTCS and VA

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can be the only answer for supplementing the hospice benefit. With the costs of long-term care reaching these levels, even paying for such care for a period of months can be overwhelming, if not altogether impossible. This is particularly true for married individuals trying to save precious resources for the well spouse. Those new to hospice should consider the idea that long-term care needs are unlikely to be too far off on the horizon. With these needs come expenses and an urgency to find the resources with which to cover these expenses. Fortunately, we have a strong public policy in favor of assisting those whose medical expenses are too great to bear. The problem, of course, is navigating the benefit programs and accessing the funds that are available for qualifying individuals. Hospice patients can almost always count on needing long-term care in some form or fashion. That being said, the time to plan for benefit programs is immediately upon beginning hospice. An Elder Law attorney is most qualified to help individuals find out what might be there for them. Hospice

patients and their families should always look into coordinating benefits so that they may obtain the maximum amount of care with whatever resources they have.

Dealing with Probate Probate is the process by which a court proves a person’s will and oversees the transfer of that person’s assets upon his or her death. While it is not an intrinsically bad process, there are certain costs involved, and it can be timeconsuming and invasive of privacy as well. To save both time and money, hospice patients can create a purposeful estate plan to effectively deal with probate. A purposeful estate plan is one that outlines how a person’s assets will be transferred at death, and provides security and stability in life as well. Such a plan typically includes basic tools, such as a will or a trust, as well as layers of security to cover events like unexpected medical crises, extended stays in a skilled nursing facility, and longterm healthcare needs. Importantly, estate planning is important for those with a sizeable estate and those with a modest estate alike.

The key to good estate planning is that each person should create a customized plan that meets his or her specific needs and goals. Everybody should have a valid will Because a will is ordinarily the single most important document in an estate plan, a person will ideally draft a will before entering hospice. But because it is not uncommon for people to put this important piece of planning off, many hospice patients are without even a basic will. In such a case, a newly admitted hospice patient should consider executing a will immediately upon beginning hospice care. At a minimum, everybody should have a will that at least:

• Designates a personal

representative to handle his or her estate.

• Designates a personal guardian for minor children.

• Designates a property guardian to manage property for minor children.

• Designates to whom his or her assets should be distributed.

Executing a will can be the simplest way to handle many Hospice & the Law

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Living Trusts matters, but wills do have certain limitations. For instance, assets such as pension plans, stocks, life insurance policies, jointly held property, trust assets, and payable on death accounts all prevail over a will. This means that if one of these assets conflicts with a will by naming a beneficiary different than the person designated in the will, the asset passes to that beneficiary without regard to the will instructions. Also, assets passed under a will must go through probate, which can sometimes be expensive and time consuming. And lastly, wills are limited when it comes to leaving conditional gifts and funeral instructions. Despite these limitations, individuals can effectively deal with each of these issues by engaging in informed planning. With proper guidance, this process can be painless and inexpensive. Revocable Living Trusts Establishing a revocable living trust is by far the most common strategy for avoiding probate. A revocable living trust is a legal instrument that allows a person called the settlor to deliver assets to the trust for the benefit of a beneficiary. The settlor can 10 Hospice & the Law

either designate a beneficiary or establish the trust so that he or she is the trust beneficiary for life, with the trust assets to pass immediately to another person or persons upon his or her death. Establishing a revocable living trust is highly effective at avoiding probate, and doing so can help hospice patients accomplish a wide range of other planning goals. Revocable living trusts offer certain protections that would be very helpful to a person who loses capacity. To secure these protections, a settlor must include specific trust provisions that dictate how trust assets should be used; these provisions would remain in effect in the event that the settlor loses capacity. Further, much more so than with a basic will, a revocable living trust gives individuals a great deal of control over transferring assets. For instance, a trust settlor can make conditional transfers, can retain assets in the trust until a specific date, and can release assets to trust beneficiaries only a portion at a time. This flexibility is often reason enough for hospice patients to include a revocable living trust in their estate plan.

Appointing a Personal Representative or Trust Administrator The primary purpose of a will or a trust is to pass assets to specified beneficiaries upon an individual’s death. Given the importance of deciding who gets what, it can be easy for individuals to overlook yet another decision they must make when creating a will or a trust – that of determining who will handle the probate estate or administer the trust. Even after a deceased person has left an inheritance, the gift cannot be completed unless somebody actually transfers the property from the estate to the beneficiaries. With wills, this person is known as the personal representative; with trusts this person is known as the trustee. Neither the role of personal representative nor the role of trustee is an easy one to fill. These jobs are typically time-consuming and demanding, and they require a great deal of attention. When deciding whom to appoint, individuals should select somebody who will understand his or her legal duties, and who will carry out his or her obligations to the estate. Selecting just the right person to

act in this capacity can prevent future complications to both the estate and to the family. Joint Tenancy Ownership Owning property in joint tenancy with right of survivorship is yet another way that individuals can avoid probate. The distinguishing feature of owning property as a joint tenant with right of survivorship is that when either of the joint owners passes away, the surviving owner immediately takes full title to the property. While any number of people can share joint tenancy in nearly any type of property, the most common joint tenancy scenario is one in which two owners share joint tenancy in property such as bank accounts, automobiles, or real property. Before taking joint ownership in property, hospice patients need to understand a few things. First, because joint tenants are effectively co-owners, both joint tenants must consent to the sale or refinancing of the property. Second, joint tenants can unilaterally convey their interest in jointly owned property, which changes the nature of the ownership so that both owners lose the right of survivorship. Third, Hospice & the Law

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Advance Directives there are certain tax disadvantages to owning property in joint tenancy. And, lastly, the creditors of any of the co-owners can reach the jointly owned property. An individual can avoid many of these problems by using a beneficiary deed, which would allow for the transfer of real estate upon his or her death without going through probate. Hospice patients should always consult with a professional before altering the nature of their ownership in property. Giving Assets Away While giving assets away might be an option, making gifts can carry certain risks. First, individuals for whom long-term care in a skilled nursing facility might be necessary can jeopardize their eligibility for the ALTCS benefit by making certain gifts. Second, individuals who give away more than $13,000 to any one person risk incurring a federal gift tax. Likewise, single individuals who give away more than the federal lifetime limit of $5 million, as well as married couples who give away more than the federal lifetime limit of $10 million, are also subject to the federal

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Hospice & the Law

gift tax. To avoid these types of issues, hospice patients should seek counsel from a professional before giving away substantial assets. Other Methods of Avoiding Probate There are several other strategies that can help hospice patients transfer assets directly to a beneficiary or beneficiaries upon their death, and thereby avoid probate. Hospice patients can implement many of these strategies by doing nothing more than filling out a simple form. Depending on the asset in question, the form may have a different title, but the effect is very much the same. For instance, individuals can cause their bank and retirement accounts to transfer to beneficiaries immediately upon their death by converting the account to a “payable on death” account. Individuals can reach this same result with brokerage accounts, stocks, and bonds, by registering the account in “transfer on death” form. And, lastly, individuals can cause real property to transfer to beneficiaries upon death, without going through probate, by executing a beneficiary deed. Importantly, a beneficiary under any of these designations does not acquire ownership rights

to the asset in question until the person who made the designation passes away.

Preparing Advance Directives Using advance directives to plan for mental incapacity Newly admitted hospice patients should consider the idea that they may one day lose the capacity to handle financial affairs and/or make medical decisions. Hospice patients who fail to make advance preparations can create a great deal of confusion for family members who are left to make decisions on their behalf. To prevent needless complications, newly admitted hospice patients should make preparations in order to accomplish two very important goals. First, hospice patients should appoint an agent that they trust to act on their behalf so that important decisions are not left in the wrong hands. Second, hospice patients should outline healthcare wishes in case they lose capacity to communicate such wishes personally. With only minimal effort, hospice patients can execute a handful of documents

that can prevent many difficulties from arising in the future. In short, this type of planning can prevent invasive legal interventions and save substantial sums of money. Healthcare Powers of Attorney With some frequency, the court has to appoint guardians to act for individuals who lose capacity to make important healthcare decisions personally. Because guardianship proceedings can be both time consuming and expensive, every hospice patient should try to avoid this scenario by establishing powers of attorney while he or she has capacity. In simple terms, a power of attorney allows a person called the principal to authorize an agent to make legally binding decisions on his or her behalf. It is important to establish both a healthcare power of attorney and a mental healthcare power of attorney, as an agent cannot have a principal admitted to an inpatient mental health facility without the latter in Arizona. Unfortunately, the mental health care power of attorney is often overlooked, but it is very important in the planning process because it Hospice & the Law

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Guardianships can help avoid a great deal of cost if the principal ever loses capacity. A principal under a power of attorney can either appoint the same person to act as agent under both the mental healthcare power of attorney and the healthcare power of attorney, or select two different agents altogether. Either way, a principal must appoint an agent or agents in whom he or she has absolute trust and confidence. When establishing a power of attorney, a principal can give the agent immediate authority, or grant authority that springs into effect if and when he or she loses capacity. Every principal must comply with the following statutory requirements to make sure that the power of attorney is valid and binding:

• The principal must clearly

declare his or her intent to delegate authority to make healthcare decisions to a specific agent.

• The principal must be of sound mind and free from duress.

• The principal must have one

witness and a notary present when he or she signs the power of attorney. The witness cannot be the agent, a relative or heir of the principal, or directly involved with providing the principal’s healthcare.

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Financial Power of Attorney In the same way that hospice patients should appoint an agent to handle medical decisions, they should also appoint an agent to handle financial affairs. With a durable financial power of attorney, individuals can appoint an agent to make financial decisions, and the agent’s authority can take effect immediately or only if and when the principal loses capacity to act for him or herself. To establish a valid financial power of attorney, a principal must:

• Understand the nature and effect of signing a power of attorney.

• Sign the power of attorney willingly.

• Initial any paragraph in the

power of attorney that benefits the agent.

• Have a notary and witness

other than the agent, the agent’s spouse, or the agent’s children sign the power of attorney. Under Arizona law, a principal can give an agent limited authority to act on his or her behalf even after the principal is deceased. This way, the agent can rely on the power of attorney to arrange

payment for funeral services and burial expenses. The document otherwise loses validity after the principal passes away, again reiterating why it is so important to execute a valid will. By appointing an agent to handle these types of issues, individuals can relieve a great deal of pressure from their family members at what will be an already trying time. Living Wills A living will is another document that would be particularly important for a hospice patient to have in place. Individuals can use a living will to provide healthcare instructions in case they become unable to communicate those wishes personally. A living will can be either very specific or very general, such that it can merely decline life-sustaining treatment in the event of a terminal diagnosis, or provide specific instructions as to pain relief, antibiotics, hydration, feeding, and cardiopulmonary resuscitation. Even those with a healthcare power of attorney should also have a living will, as an agent under a power of attorney may not know precisely what type of healthcare the principal wishes to receive.

Applying for Guardianship or Conservatorship Powers of attorney can be quite effective at allowing individuals to designate somebody else to make their medical and financial decisions. Powers of attorney cannot override a person’s financial and placement decisions, however, and sometimes hospice patients become unable to exercise sound judgment when it comes to such decisions. Family members presented with this type of a dilemma can protect their loved one by applying for a guardianship or a conservatorship. A guardian is appointed by the court to oversee another person’s medical decisions. Likewise, a conservator is appointed by the court to oversee another person’s financial decisions. A variety of circumstances may lead families to apply for guardianship or conservatorship. For instance, families may consider pursuing this course if their loved one:

• Is unable to make medical and/ or financial decisions.

• Is unwilling or unable to sign a power of attorney.

Hospice & the Law

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Estate Planning • Becomes easily agitated, aggressive, or combative.

• Gets lost or disoriented, but refuses to give up driving.

• Is being exploited by a family member, friend, or scam artist.

• Cannot control spending. • Is not safe to live at home, but refuses to move.

• Has changed powers of attorney numerous times.

• Has given power of attorney to an untrustworthy person.

• Needs treatment in a mental health facility.

The process of applying for guardianship or conservatorship can be somewhat complicated, and it typically takes about eight weeks to complete. In certain situations, however, the court will appoint a temporary guardian or conservator to act while the process is underway. Because applying for guardianship or conservatorship always requires court involvement, it is typically best for an attorney to handle the matter.

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Minimizing Tax Liability Hospice patients who have a larger quantity of assets should consider including strategies in their estate plan that will reduce their tax obligation. Under the current law, estates valued at greater than $5 million are subject to the federal estate tax, at a maximum rate of 35 percent. In certain situations, however, the $5 million exemption is transferable to a surviving spouse, and so a married couple could actually qualify for an exemption of up to $10 million. In addition to the federal estate tax exemption, there are a variety of advanced estate planning techniques that can help people minimize their tax obligation and accomplish their planning goals. For example, a life insurance trust can allow people to exempt the proceeds of a life insurance policy from the estate tax. Another type of a trust, known as a dynasty trust, can help people with larger estates leave an inheritance to grandchildren and beyond, while also keeping the trust assets exempt from the estate tax. Additional strategies that can be quite helpful include charitable

gifting, conditional gifts, and staged inheritances. The intricacies of these strategies are beyond the scope of this guide, but a qualified attorney can provide answers to those with more complex situations.

Updating an Estate Plan Hospice patients who already have an estate plan would be mistaken to believe that they have no reason to give additional thought to estate planning issues. Nonetheless, people make this mistake all too often, and it can leave them with an incomplete plan that ultimately fails to accomplish their most current goals. To get the most from an estate plan, hospice patients must make sure that the plan itself remains current. There are several reasons why newly admitted hospice patients should review their estate plan:

• Laws often change, and

sometimes changes in the law give cause to update the documents that constitute an estate plan. In fact, 2011 brought significant changes to tax laws that will heavily impact estate

planning, so now would be a good time for a person to review and update an estate plan that was created some time back.

• Family circumstances change,

which can give reason to make any number of changes to an estate plan. For instance, trustees, personal representatives, and agents may pass away, lose capacity to serve, or become untrustworthy with the passage of time. Likewise, children may grow old enough and responsible enough to serve in capacities in which they were not able when the original plan was adopted.

• An individual may decide to change beneficiaries or allocations.

• Original documents may be

outdated, or may have been created in a state in which the relevant laws differ from those in Arizona.

• An individual may acquire

more assets that should be transferred to his or her trust. Properly funding trusts is a huge issue, as even trusts that were properly funded at the time they were created must be updated as assets are bought and sold. A person whose goal is to avoid probate should take particular Hospice & the Law

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For the Family care to transfer all of his or her assets into the trust.

Planning for a Child With Special Needs It is next to impossible to create a meaningful estate plan by following a scripted formula. Rather, to get the most from an estate plan, people should customize the plan to fit their particular circumstances. When creating an estate plan, hospice patients should include strategies and tools that are specifically tailored for hospice patients. Moreover, hospice patients who have unique needs should also include strategies that will bring them closer to accomplishing these special objectives. A parent of a child with special needs would be remiss to create an estate plan without considering a special needs trust. This is particularly true if the child depends on Social Security or Medicaid for support, as these programs are needs based, meaning that any sudden increase in a recipient’s income or assets could disqualify the recipient from the program. Importantly, even an inheritance can cause a recipient of public benefits

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to lose eligibility for the benefit upon which he or she relies. Public benefits typically provide just enough to cover an individual’s basic necessities, but not much else. As such, a parent of a special needs child might wonder whether it is possible to leave the child an inheritance to supplement public benefits without jeopardizing the child’s eligibility. Fortunately, special needs trusts provide a means by which an individual can accomplish this goal. As long as an individual complies with strict rules when establishing a special needs trust, and the trust funds are used only on approved expenses, the trust will not interfere with a recipient’s benefits. Jackson White’s Website, www.arizonaseniorlaw.com/specialneeds-trusts, would be a valuable resource for somebody who wants to learn more about special needs trusts.

What To Do When a Loved One Dies Given that hospice care is only available to patients who are not expected to live longer than six months, families of hospice patients should prepare themselves for their loved one’s death. The death

of a loved one can obviously be a traumatic experience, but family members can perhaps handle it best by knowing what needs to be done. The following list provides a simple guide for family members in this difficult time.

• Make funeral arrangements:

Not everybody makes advance arrangements or leaves instructions. An experienced funeral director can be helpful and offer a variety of helpful services, including obtaining death certificates.

• Notify people of the death:

Notify family & friends, employer, Social Security, VA, pension, insurance, banks, brokerages, IRAs, etc. Failure to notify even a distant or estranged family member can engender deep feelings of mistrust and resentment.

• Gather important documents:

Documents to gather include bank and brokerage statements, bills, deeds to real property, estate plan, life insurance policies, annuities, safe deposit box information, stock and bond certificates, tax returns, titles to motor vehicles, etc.

• Contact an attorney for estate

and trust administration.

• Update legal documents:

Once things settle down, family members should update their own legal documents and estate plan.

For the Family It is natural for hospice patients’ family members to have difficulty coping with the impending loss of a person they love. And family members who do not know what to expect as they go forward can find the process even more difficult than it needs to be. Family members should expect to go through a grieving process, and those who have a basic understanding of this process tend to cope with their emotions more appropriately and effectively. Hospice social workers can be an invaluable asset in this process, as they can help guide families to much needed resources. Importantly, however, social workers cannot give legal advice, so families should keep in mind that Elder Law attorneys can be the best source of answers and counsel. Psychologists widely agree that there are five distinct stages of Hospice & the Law

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Why Plan Now? grief. The first stage of the grieving process is denial, where the grieving individual refuses to accept his or her loss, and isolates from friends and family. The second stage is anger, where the grieving person experiences feelings of resentment about his or her loss. The third stage is bargaining, where the grieving person attempts to make deals with a Higher Power to take away his or her loss. The fourth stage is depression, where the grieving person experiences feelings of numbness and sadness. And the fifth stage is acceptance, where the grieving person comes to terms with his or her loss and begins to move forward. No two people experience these stages identically, and a person may move in and out of the stages until he or she finally accepts the reality of his or her situation. For most families, of course, understanding the grieving process is just the beginning. A hospice team should work not only with hospice patients, but also with patients’ family members to help them cope with the situation. Hospice teams typically accomplish this by helping family members know what to expect, and then guiding them through the process

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Hospice & the Law

with empathy and respect. In addition to the core hospice team, family members can also turn to additional resources for guidance and support. For instance, many families have turned to the following resources for answers and assistance: Area Agency on Aging Senior Help Line: (602) 264-4357 www.areaagencyonaging.org New Song Center (for grieving children): (480) 951-8985 www.thenewsongcenter.org Foundation for Senior Living: (866) 375-9779 www. foundationforseniorliving.org Religious or spiritual advisors Therapists or counselors Internet resources

Why Plan Now? By definition, hospice is end-oflife care, but it is never too late to make important preparations. And given that hospice patients know the end is drawing near, they are in a unique position to arrange their

affairs with finality. A newly admitted hospice patient should not adopt the philosophy that things will simply work themselves out, as a failure to prepare almost always results in negative repercussions. Not only does a failure to prepare create a risk that healthcare wishes will go unfulfilled, but it also creates unnecessary financial and emotional burdens for family members after the hospice patient is gone. Ultimately, hospice patients who thoughtfully arrange their affairs can leave their family with what just might be the greatest gift of all – the time to spend with them in their final days, not dealing with court action, paperwork, and legal interventions. Hospice patients may have to confront tough questions as they make these important legal and financial preparations. Taking proper time to coordinate benefits will allow individuals to use hospice at its fullest capacity. A qualified Elder Law attorney can answer questions, offer counsel, and provide direction. At Jackson White, we utilize Elder Care Advisors to help families through these very complex issues, and help them decide if an attorney is needed. We feel strongly that hospice patients

should not have to pay an attorney to find out if they need an attorney. To that end, our Elder Care Advisers offer free prescreening of benefits. A newly admitted hospice patient should seek out an attorney who has experience working with the hospice population, and who understands the specific strategies that are generally most helpful to hospice patients and their families. With the assistance of an experienced Elder Law attorney, hospice patients can create a customized plan that meets their specific needs. Hospice patients who work with an Elder Law attorney discover a sense of security arises that comes only from purposeful legal planning. The interdisciplinary approach of hospice is a fantastic model that helps patients and their families. We at Jackson White feel a part of this interdisciplinary team, and value the opportunity to help individuals with these issues.

Contact Us 1.800.243.1160 www.ArizonaSeniorLaw.com

Hospice & the Law

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1.800.243.1160 | www.ArizonaSeniorLaw.com


Hospice and the Law: An Arizona's Consumers Guide