My sisters and I celebrated my Dad’s 94th birthday last week.  Although he has lost a few steps, my Dad is still living with his wife in his own home with a  daytime caregiver. 

Last year he had to give up driving, which meant he could no longer deliver Meals-on-Wheels, take day old bread to the homeless shelter, and other volunteer activities that took him out of the house and into the community.   He is mostly house bound now, but still wants to contribute to causes and charities he believes in. 

Like many of my elderly clients, Dad  has often been sucked into direct mail scams and telephone sales scams.  Thinking he will have a great deal more money to send to his charities, he sends the money or unwittingly gives his authorization to his bank to debit his account in response to mail order sweepstakes offers and other promises of riches or worthy causes. 

In recent years, lottery crooks and others have added a new weapon in their rip-off arsenal: They send checks — fake, of course — as advance payments on purported winnings to come. Unsuspecting victims are guided to deposit the seemingly real check and then to wire most of the money to scammers as soon as it shows up in their accounts. When the counterfeit check actually bounces some days later, the victim is on the hook for the money — and often bank fees as well.

In my father’s case, and some of my clients, considerable money is lost before the accounts are closed or payments are stopped.

On this subject, I recommend to you a supurb article in the June 17th Wall Street Journal by Karen Blumethal, “A Family’s Fight to Save and Elder from Scammers”.   I urge anyone with an elderl parent or relative to read this article and do what you can to help.

Noted in the article are several strategies to stop the scammers:

  Sign up cell phones and land lines with Do Not Call Registry
 
  Put a short script by the phone for answering telemarketers such as
  “I’m very busy, I can’t talk now, thank you for your call.”

  Change the victim’s phone number. Consider having mail sent to
  a P.O. Box or other address where so that someone looking out
  for the victim can screen for scams

  Help the victim find activites to fill the time spent  talking to scammers
  and opening mail.

All of these are worth a try…but I’m still the son and he the father.  I try keep his checking account balance pretty small, but taking his phone number away and trumping his selection of worthy causes is tougher love than I have been capable of so far.  

James D. Perry

 Young or old, after the financial devastation of the six months, we have more reasons than ever take a fresh look at our financial and estate plans. Most of us planned for increased financial assets in the future. Very few of us has planned for less money

Those who are retired or plan to be in a few years don’t have a lot of time to sit tight and hope for a recovery.  In light of the steep declines in our fortunes, here are some questions to think about:

“How are you doing financially?” Falling stock prices, lower interest rates and reduced dividends at many stalwart companies may also have sliced retirees’ monthly income.  Besides causing sharp cuts in spending, it is wise now to consider new ways to get income out of existing assets.

Elderly parents may need your help revising their budgets, or they may need to rework their investment mix. Others may need to explore ways to tap their home equity. If that isn’t your strong suit, you may want to help them find a good independent financial adviser.  

From an estate planning point of view, if your assets have been substantially reduced, consider making changes to you estate plans.  As an example, one strategy would be to reduce or eliminate specific cash gifts so that the amount set aside in the will for children isn’t eaten up by the once smaller gifts earmarked for distant relatives, charities or grandchildren. 

Others may need to take a closer look at their children’s current and future needs in making changes to the estate plan.  When one child has lost a good job, or had other financial setbacks, the best approach may not be to leave the entire estate to all children in equal shares.

In these days of financial scandal we all need to be aware of people trying to sell financial products.  Among the possibilities: telemarketing scammers promising sweepstakes and lottery winnings in return for initial payments, and slick salesmen selling seniors products or services they don’t need. Senior citizens particularly need to beware of investments that may sound good — offering regular income or guaranteed returns — but that may be inappropriate for retirees.

Many annuities, for instance, come with steep expenses and “surrender” fees, which prevent the holder from withdrawing their money for several years without a huge penalty, making the funds inaccessible in an emergency.

Adult children should ask their parents that question if anybody is trying to sell them something. If the answer is yes, encourage them to talk with adviser before they buy anything.

James D. Perry

A  Bloomberg news report recently explained that a last minute Bush administration new regulation designating state inspectors, and Medicare and Medicaid contractors as federal employees, that affects approximately 16,000 nursing facilities nationwide, is forcing plaintiffs with potential personal injury actions against nursing homes to take painstaking efforts to obtain information regarding injuries and abuse.

Federal employees are groups usually protected from providing information to either side in private litigation and litigants may need to seek court orders to get vital discovery information. Eric M. Carlson, an attorney with the National Senior Citizens Law Center, said efforts are already in the works to overturn the late-term regulation issued by  Bush.

However, the California Department of Public Health has already adopted a policy to implement the new federal rule.

Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could or would never find out.

The new regulation prevents these state inspectors from becoming involved in private lawsuits implicating facilities in the federal assistance program unless they have prior approval by the head of the Health and Human Services Department.

The regulation was put into place under the ridiculous guise of promoting efficiency by these newly designated federal employees in their everyday tasks.

Requests for these employees to participate in private cases “diverts employees from their federal survey, certification and enforcement responsibilities,” the Bush administration said in a supporting document. “The cumulative effect of these requests can impede these activities.”

In my opinion this is unmitigated nonsense!!  Preventing inspectors to reveal the records of their nursing home inspections prevents families from obtaining information regarding injuries suffered by their parents or family members!

A large percentage of California nursing facilities for the aged are cited each year for instances of abuse.  Unfortunately, the majority of nursing home abuse and neglect cases are never reported. When we put our elderly loved ones in a nursing home or assisted living facility, we’d like to think that they will receive the same standard of care that we would provide, but that is often not the case.  The reality is that even the so called “upscale assisted living residences” often abuse and neglect the basic needs of their residents.  

The terms “abuse” and “neglect” are used together and sometimes used synonymously, but they are really two very different things. Abuse of an elderly person may take the form of physical abuse, sexual abuse, or emotional abuse. Some signs and symptoms of elder abuse include: bruises, cuts, broken bones, fear, depression, burns.

Signs and symptoms that your loved one is being neglected may include: malnutrition, dehydration, sores that don’t heal, unsanitary living conditions, soiled clothing, and dirty linens.

As the number of the frail elderly increases each year, so do the number of cases of elder abuse and neglect.  in this environment, you need to know how to take legal action you can take if you suspect your loved one has been the victim of elder abuse and neglect.

In the case of nursing home problems, any person can file a complaint about a California nursing home with the Licensing and Certification Division of the California Department of Public Health (DPH). DPH is the state agency that enforces nursing home laws and regulations through regular inspections and complaint investigations.

You can file a complaint about abuse, neglect and any other matter protected by law. For example, you can file a complaint about violations of the patient’s rights, poor care, lack of staffing, unsafe conditions, mistreatment, improper charges, transfer and discharge concerns, and a failure to readmit the patient you after a hospital stay

For more information on how to report or pursue a claim for nursing home elder abuse you can contact my office, or get further information from the California Advocates for Nursing Home Reform Website.

Not long ago I received a call from Mary, a client of mine who lives in a large Orange County retirement community. My client’s 87 year old brother Bill lives in the same community, a few door down, and is having some health problems. (As they used to say on Dragnet, the names have been changed to protect the innocent.)

At the time Mary set up her estate plan about ten year ago, she nominated her brother’s son, her nephew, as her successor trustee, and agent under power of attorney for property and health care. Mary and her brother live in the same retirement community a few doors away from each other.

It turns out that the nephew was also the person nominated by Mary’s brother to serve as his trustee and agent, and according to my client, the nephew is doing a very poor job. The nephew used to live nearby in Long Beach, but is now retired himself and has moved about 20 miles away. He constantly complains to Mary about all the time it takes him, and what a burden it is for him to be looking after his father. He rarely visits or calls Bill to check on him. “I just want time to enjoy my own life”, the nephew told Mary. My client is lucky that she had the opportunty to see her future trustee, and health care agent in action and to see his real motivation. Most of us aren’t this lucky.

Seeing the nephew’s performance on behalf of Bill, my client told me to revise her estate plan immediately and to remove any mention of her nephew. This time she choose a private professional fiduciary to do these jobs for her.

We all want someone who cares about us and for us, and who will make our financial and physical well-being a high priority, not a burdensome afterthought.

I believe that the most important estate planning decisions that most people make have to do with picking the right people to take over the management of their health care and financial affairs when they are no longer able to do so. I shudder to think of the treatment my client would have received at the hands of the nephew given the way he neglects the needs of his father.

Moral to this story - take out your estate documents every few years and review your choices for successor trustees, and power of attorney agents. Chances are you maybe surprised when you see who you named five years ago.

Tune in next week for some tips on how to pick a trustee, health care agent or power of attorney agent.

James D. Perry

In addition to seemingly endless gift lists to satisfy, the holiday season presents many with the perplexing issue regarding service tipping.

Consumer Reports magazine states in the December issue that gratuities, in general, rose by approximately $5.00 over the previous holiday season. In general, Consumer Reports found that the experts they surveyed recommended a one-week service fee match for the total amount of the tip.

In my own case, the biggest tip will go to the caregivers for my parents. My Dad is 93 and Mom is 91. They are still able to live in their own home with the assistance of caregivers who come in each day to prepare meals, take them to the doctor, and any place else they want to go. They also provide an extra set of eyes and ears to report on how my folks are doing from day to day.

Most caregivers are unpaid family members who volunteer their services, or live in the home of their parent rent free. In these cases, when money is not available to show appreciation, I suggest that you take the time to write a genuine thank you note to the relative providing the care. As Ralph Waldo Emerson said, “the only gift is a portion of thyself”.

Where an elder has a 24-hour caregivers or neighbors who provide care, the decisions on a holiday gratuity are not the issue. Often they have little communication with relatives and family who have moved from the area. These elderly and dependent adults are easy prey to the darker side of care giving…the caregiver or neighbor who talks the elder into making a substantial gifts to the them in a will or trust.

Caregivers are one category of people the State of California would rather you left out of your will. If the person receiving the care is a “dependent adult” (a person who has physical or mental limitations that restrict his or her ability to carry out normal activities, or whose physical or mental abilities have diminished because of age) they will have to jump through a few extra hoops to leave anything substantial to their caregiver. This is because many dependent adults are too weak of body or mind to resist the influence of a caregiver who suggests a trip to the lawyer’s office to make changes to their will. As a general rule in California, gifts to caregivers by a dependent adult in a will or trust are void unless certain conditions are met.

There are legal ways to leave some part of an estate to a caregiver. The law specifically exempts gifts of $3000 and some small estates. For larger gifts, California requires the client meet with a second attorney to explain why they would want to make a gift to the caregiver. The second attorney must then certify that the client is not making the gift as a result of fraud, menace, duress or undue influence.

In a recent interpretation of this law, the California Supreme Court, in Bernard v. Foley, ruled that the definition of a caregiver includes relatives and friends who provide care for a nominal cost or no cost at all, not just professional paid caregivers. By widening this definition, many friends of dependent adults, that provide any ongoing health or social service, will find themselves falling within the definition of “care custodian”, which could in turn bar them from donative transfers intended for them in wills and trust.

When in doubt, any person desiring to gift money from a will or trust to a person who has provided them care giving service, paid or not, should make sure proper legal steps are taken to ensure that the gift will not be voided by failing to follow the proper legal procedures.