An Alameda Superior Court judge decided this month not every felony conviction will disqualify you from helping the elderly or disabled.

Gov. Arnold Schwarzenegger originally wanted to ban everyone with a felony record from working in the In-Home Supportive Services program (IHSS). As the law stands, workers are barred from the program for 10 years if they have been convicted of child abuse, elder abuse, or defrauding MediCal or any patient.

Outside those restrictions, though, Judge David Hunter says in-home patients can employ anyone they want.

IHSS helps pay for in-home care to 430,000 low-income elderly and disabled Californians. It allows patients to remain in their homes under the care of individuals of their choosing, as approved by the state, to render help with daily tasks, such as bathing, house cleaning, meal preparation, laundry, grocery shopping, personal care services, accompaniment to medical appointments, and protective supervision for the mentally impaired.

The state argues that its interest is protecting Californians and preventing fraud.

One of the plaintiffs to the suit is a Sacramento woman who provides in-home care for her 90-year-old-mother. She was initially disqualified under the governor’s plan because of a 1976 conviction for felony grand theft.

The program costs about $5.5 billion annually, half of which is paid for by the federal government, 35% by the state, and 15% by individual counties.

“We are following the court order, but we do not believe convicted felons should be eligible to care for elderly and disabled Californians in their homes,” said Lizelda Lopez, spokeswoman for the Department of Social Services.

The state could appeal the ruling, and Ms. Lopez says the Department is already reviewing it.

This is tricky ground. The state has a legitimate interest in protecting its citizens and taxpayer dollars, but how long should it punish people for their crimes at the expense of the elderly and disabled?

James D. Perry

Brooke Astor was a New York philanthropist and socialite who married into the wealthy Astor family. She died at the age of 105 in August 2007 with a $200 million fortune.

In the year before she died, a battle was raging in the courts as friends and family members attempted to have her only son, Anthony Marshall, removed from his position of guardianship over her on suspicion of elder abuse. Their reasons included allegations of financial fraud and medical neglect.

Just a few months ago, Marshall – himself now 85 years old – was convicted on 14 of 16 charges against him in his scheme to steal millions from his mother, including grand larceny and forging Astor’s signature on an amendment to her will.

You don’t need money to be a victim of elder abuse, though. Elder abuse includes financial, physical, and emotional abuse or neglect.

There are a great number of consumer scams and unscrupulous individuals (some in your own family) who are willing to take advantage of the elderly.

Last week I spent about 2 hours dealing with my 94 year old father’s bank because one of the sham mail order “charity” sweepstakes he entered used his $4 check to create phony checks and wrote one against his account for $300. I got them to reverse the charges, but they demanded that the account be closed.

To protect your finances, you should watch out for fake charities; ask to see a business permit from door-to-door solicitors; be wary of get-rich-quick investment schemes; and check references of repairmen and contractors.

Also, be extra careful in selecting people (including family members) for power of attorney, trustee status, or other access to your finances.

If you suspect elder abuse, or are a victim of elder abuse, don’t be afraid to report it to your local Adult Protective Services agency or the California Attorney General’s Elder and Dependent Adult Abuse Hotline (1-888-436-3600). If the abuse is occurring in a licensed long-term care facility, report it confidentially to your local Ombudsman (1-800-231-4024).

James D. Perry

Healthcare has been dominating the national news and has sparked a lot of debate about medical costs, elder care, and end-of-life care.

One rather controversial op-ed piece by Richard Dooling for the New York Times highlighted the lopsided spending on life and lifestyle sustaining medical care for octogenarians and nonagenarians.  He suggested a reorganization of medical care priorities, such as shifting government dollars from bypass surgery and titanium knee-replacement surgery for elderly patients to preventative care for children at pennies on the dollar.

Among the responses to this article – ranging from outrage to applause – was a letter to the editor from Adele Welty in Flushing, Queens, a “73-year old grandma” who pointed to the importance of advance directives as one solution to generational medical care cost gap Dooling described.

I am a strong proponent of advance directives, which will clearly identify for doctors, nurses, hospital staff, and family members your wishes regarding emergency medical care and end-of-life care should you become incapacitated.  In fact, just recently I heard from the family member of a client who was able to instruct medical personnel as to the client’s wishes about life-saving care and life support using an advance directive signed two weeks prior.

Adele paints a grim picture of “being put in some sort of time warp of machine-generated life support, tortured with tubes and left to rot in an undignified and helpless state with no hope of recovery, a heartbreaking burden to [her] children” as her reason for signing an advance directive.  But you need not have Adele’s fear to know that an advance directive is just another responsible part of your overall estate plan, ensuring that your life and legacy are in your control to the very end.

James D. Perry

In high school, it was foggy car windows at the look-out point.  In college, it was a sock on the doorknob.  When you finally got your own home, you could rejoice in the fact that you didn’t have to sneak around for sex anymore…until the kids came along and it was locked doors and stolen weekends.

It seems like all our lives, we expend considerable effort to protect the privacy of our most intimate encounters, but a recent Los Angeles Times article pointed out the near-impossibility of finding an unmonitored moment between consenting adults in nursing homes.

Faced with always-open doors, watchful staff, and roommates, a nursing home resident can quickly go from relatively independent lifestyle to a lock-down experience with maid service and medical oversight.

A 2007 study published in the New England Journal of Medicine showed that 53 percent of adults ages 65 to 74 report being sexually active.  That figure drops to 26 percent for adults ages 75 to 85.  The drop can be attributed to multiple factors, including declining health, lack of potential partners, – women have a longer life expectancy than men – and even the lack of available privacy in long-term care facilities.

New York Times source, Professor Eddie Hargrove says that hand-holding, kissing, and petting “probably would go further than a little medication at 10 o’clock at night” setting up the premise that sexual activity is beneficial to one’s health at any age.

So, as Ira Rosofsky of the Times asks, “does it make sense that it’s easier to get a conjugal visit in jail than in a nursing home?”

The Nursing Home Reform Act of 1987 contains a Residents’ Bill of Rights, which requires federally funded nursing homes to recognize a resident’s right to privacy and to accommodate his or her personal needs.  The law’s aim here is to ensure that nursing homes provide an environment in which each resident can “attain and maintain his or her highest practicable physical, mental and psychosocial well-being.”

And in California, the Welfare and Institutions Code specifies that residents have the right “to live in an environment that enhances personal dignity, maintains independence and encourages self-determination,” and “to participate in activities that meet individual physical, intellectual, social and spiritual needs.”

But it’s safe to say that a vast majority of nursing homes are not measuring up, and residents are faced with a choice between forgoing the frisky behavior or risking an embarrassing intrusion by staff or roommates.

It’s enough to make them feel like over-protected teenagers, again.

James D. Perry

I recently learned about  a new website sponsored by the federal government that rates nursing homes.  For those of you who are doing your best to find the best facility to care for an elderly family member, the new option in locating higher quality homes is welcome.

In addition, The Centers for Medicare and Medicaid Services (CMS) will start a pilot program this summer to track how cash incentives to nursing homes improve care, specifically in nurse staffing and preventable hospitalizations. 

There are roughly 16,400 nursing homes nationwide and taxpayers spend about $72.5 billion annually to subsidize nursing home care through the medi-cal and medicare programs.

CMS began ranking nursing homes “based on government inspection results, staffing data, and quality measures” via the “Nursing Home Compare” system, which is available at medicare.gov/NHCompare.  

When reviewing the Web site, be sure to follow up with additional research, such as in-facility visits, speaking to other residents, data review, and state and other source review. 

The Advocacy group, the National Citizens’ Coalition for Nursing Home Reform, warns some nursing home-provided data may contain errors and that consumers should check regularly for monthly updates. 

Check out the website and compare it’s rating with your own observations. 

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!

Few Orange County or Los Angeles County seniors or their families are aware of financial benefits that are available to U.S. Military Veterans and their spouses, for non-service connected disabilities.

Veteran’s pensions are available to large numbers of seniors, age 65 years or older who are financially eligible. The VA rules rules actually consider all seniors age 65 and above to be “disabled” for purposes of pension eligibility. Additional criteria can raise the veteran’s pension benefit above the basic independent pension if the veteran is “housebound” or in need of “aid and attendance” for certain activities of daily living.

VA pensions can make a huge difference in the ability of a veteran or widow to afford basic costs of living, in-home caregivers in order to be able to stay at home, or to afford to live in an assisted living facility of his or her choice without using Medi-Cal or Medicaid.

Planning for eligibility for VA benefits is somewhat similar to planning for Medi-Cal long-term care benefits, but in some instances less complicated. A worrisome concern is that the simpler rules for VA pension benefit eligibility may entice seniors or their children or agents to purchase annuities, transfer assets, or carry out transactions that will later cause ineligibility for Medi-Cal.

It is crucial not to preclude Medi-Cal eligibility when applying for VA benefits. Veteran Service Organizations exist to provide no cost assistance to Veterans in preparing and filing applications, but they are not qualified to assist veterans or their families with eligibility planning for Medi-Cal.

Such planning required the guidance and assistance of an experienced Orange County elder Law attorney.

For more information on VA benefits and pensions go to http://www.vba.va.gov/VBA/

James D. Perry

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 an article in yesterday’s Los Angeles Times, Delia Fernandez, a Certified Financial Planner outlined the long term care strategies available to an elderly couple in a decling real estate market.   Ann Marsh, the writer for the LA Times called me for information on the Medi-Cal Rules.  Check out the article if you get a chance.

 A large number of the elderly and disabled persons who receive long term care in nursing homes are eligible to financial assistance in paying the nursing home throught the Medi-Cal program.  As an elder law attorney I assist clients with eligibity for Medi-Cal Long Term Care.  

 Eligible single persons are limited to $2000 in countable assets.  Married couples are allowed to have considerably more assets so the a spouse at home is not impoverished before the ill spouse can qualify for Medi-Cal assitance.  Certain assets are exempt including the family home house, household goods and most personal property, and a car.

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.