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 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.