Category: Elder Law Planning

New End of Life Law

Posted by heschlawadmin on March 19, 2018

Medical/Physician’s Orders for Scope of Treatment

Kentucky and Indiana (Ohio Pending)

Did you know that in the last month of life over 50% of Americans go to the emergency room and that 50% to 75% of them get admitted? However, some people might not want to spend the last month of their lives in a hospital. Hospitalization is expensive and usually not considered an ideal place to die. You can avoid these unwanted end of life experiences through proper advance care planning.

The newest tool for advance care planning is medical or physician’s orders for scope of treatment. Nationally this new tool is being referred to as a POLST, which stands for Physician’s Orders for Life-Sustaining Treatment. The National POLST Paradigm is an organization started in Oregon that helps push for the adoption of medical order documents across the country. Over 22 states have endorsed the POLST program, and 25 others are developing similar programs. Kentucky and Indiana are two such states. In Kentucky, these documents are known as MOST or Medical Orders for Scope of Treatment. In Indiana, they are known as POST or Physician Orders for Scope of Treatment. However, Ohio has not been successful in passing a POLST initiative. Ohio’s MOLST (Medical Orders for Life-Sustaining Treatment) bill has passed the Ohio Senate and has been referred to committee in the House. These documents go by a few different names depending on the state, but generally, they do the same thing.

POLST type documents are meant to encourage patients and their health care professionals to talk about what a patient wants at the end of life. The MOST document, unlike a living will, is a doctor’s orders. The fact that they are orders instead of a legal document leads to increased compliance by emergency medical personnel and hospital staff. Unlike a living will, MOST documents are filled out jointly by the patient and their physician. The purpose of this joint involvement is informed, shared decision-making between patients and healthcare professionals. The conversation involves the patient discussing his/her values, beliefs and goals for care, and the healthcare professional presents the patient’s diagnosis, prognosis, and treatment alternatives, including the benefits and burdens of life-sustaining treatment. Together they reach an informed decision about desired treatment, based on the patient’s values, beliefs, and goals for care.

However, MOST documents are not recommended for everyone. They are highly recommended for patients for whom their health care professionals would not be surprised if they were no longer living within a year. Patients should, however, have in place a living will and possibly a MOST document. The MOST document allows for a patient to dictate how they will spend their final days. The MOST document makes sure that everyone in the healthcare field knows exactly what the patient’s wishes are and that they follow those wishes.

Conversations about end of life planning are difficult. However, if you don’t have them it can be even more difficult for your family to figure out your wishes. Have these conversations with your family members and consider putting in place a living will and if necessary a medical order for treatment document. If you need help putting these documents into place or have any questions feel free to reach out to our office.

Bill Hesch is a CPA, PFS (Personal Financial Specialist), and attorney licensed in Ohio and Kentucky who helps clients with their financial and estate planning. He also practices elder law, corporate law, Medicaid planning, tax law, and probate in the Greater Cincinnati and Northern Kentucky areas. His practice area includes Hamilton County, Butler County, Warren County, and Clermont County in Ohio, and Campbell County, Kenton County, and Boone County in Kentucky.

(Legal Disclaimer: Bill Hesch submits this blog to provide general information about the firm and its services. Information in this blog is not intended as legal advice, and any person receiving information on this page should not act on it without consulting professional legal counsel. While at times Bill Hesch may render an opinion, Bill Hesch does not offer legal advice through this blog. Bill Hesch does not enter into an attorney-client relationship with any online reader via online contact.)

For more information on POLST visit:

http://polst.org/

How to Have “The Talk” with Your Aging Parents

Posted by heschlawadmin on November 10, 2016

Remember having “the talk” with your parents in middle school? That awkward conversation you had with your mom or dad where they tried to explain the facts of life to you while you desperately searched for an excuse to end the conversation? Well get ready to have another “talk” with your parents, only this time, you’ll be discussing their end-of-life planning, not the birds and the bees.

What does this “talk” need to cover? Generally, this conversation needs to address the issues surrounding your parents’ twilight years, such as retirement planning, nursing home preferences, funeral arrangements, wills and trusts, powers of attorney, and possible Medicaid planning. Specifically, an estate planning and elder law attorney can identify your parents’ unique estate planning and elder law planning issues and assist with implementing their end-of-life planning strategies. To have a successful “talk” with your parents, consider using this four-part strategy:

Don’t wait for tragedy to strike

Don’t wait for tragedy to strike before having the conversation. I often see that families put off talking about these issues until an unexpected illness or death shocks the family, at which time it may be too late to do anything.

Have the conversation with your parents right away, while they are still healthy and able to make informed decisions for themselves. This becomes even more important if your parents are older or if you think a parent is showing signs of memory problems or is not feeling well on a regular basis. Having these discussions in advance can mitigate problems down the road and can remove any feelings of doubt you may have if you need to make a decision on their behalf.

Such topics are sensitive and your parents may try to avoid having the conversation with you altogether. Schedule a specific time and place with your parents to have this conversation so that they can be prepared for it. If you unexpectedly spring the discussion on them, they may get defensive or shut down. If your family will be in town for the holidays, Thanksgiving and Christmas can be ideal times to schedule the family meeting. You might also consider getting your parents’ attorney and CPA involved in the meeting.

Make estate planning documents a priority

Not every family needs a complicated trust or an aggressive Medicaid planning strategy. Your parents’ estate planning attorney can assess your parents’ unique situation and make a recommendation for what they might need. If your parents feel overwhelmed and choose to do nothing, you need to at least advocate that they implement or update their Last Wills and Testaments, Financial Powers of Attorney, and Health Care Powers of Attorney and Living Wills. These are the basic estate planning documents that every person needs in place, and having them will make everyone’s lives much easier. If your parents don’t have an attorney or are unable to leave their home, help them find an estate planning and elder law attorney who is willing to come to their home and will handle their situation in the safety of their home.

Address finances carefully

Many in your parents’ generation are cautious and secretive about their finances. Don’t assume that your parents will be comfortable sharing details of their wealth or debts with you. If they aren’t comfortable with sharing this information, don’t be pushy. Simply find out the names of their financial advisor, attorney, and CPA so you know who to contact in case of a financial emergency and encourage your parents to do elder law, financial, and estate planning with them.

Don’t be overly persuasive

Remember that this conversation is about planning for what is best for your parents in their twilight years, not maximizing your inheritance. You may need to walk a fine line between arguing a position you feel is right for them and not coming off as being greedy. You don’t want to ruin your relationship with your parents because they think you’re more concerned about their money than what they want to do regarding their nursing home needs in the future. I recommend that you discuss what nursing home they would want to go to if the need arose unexpectedly and suddenly (i.e. rehab following a stroke or a fall).

Also remember that your parents will be feeling vulnerable, so if you disagree with something they feel strongly about, respectfully present your arguments and recommend that they speak with their attorney and CPA for professional advice.

Much like in middle school, having “the talk” with your parents will be uncomfortable for everyone involved. However, having open, respectful, and honest dialogue with your parents will give them peace of mind that you are looking out for their best interests.

Bill Hesch is an attorney, CPA, and PFS (Personal Financial Specialist) who is licensed in Ohio and Kentucky and helps clients get peace of mind with their tax, financial, and estate planning matters. He focuses his practice in the areas of elder law, corporate law, Medicaid planning, tax law, estate planning, and probate in the Greater Cincinnati and Northern Kentucky areas. His practice area includes Hamilton County, Butler County, Warren County, and Clermont County in Ohio, and Campbell County, Kenton County, and Boone County in Kentucky.

New POA Law Highlights the Need for Estate Planning Review

Posted by heschlawadmin on September 29, 2016

Financial elder abuse, although often overlooked, is a serious problem in our world today. As baby boomers age and the average life expectancy rises, the number of elder abuse cases will continue to increase. More often than not, the abuser in these types of cases is someone in a trusted role – a caretaker, a child, or even an agent appointed in a financial Power of Attorney. While most agents acting under a Power of Attorney are honest, some have abused their power. To prevent and punish this kind of misconduct, the Ohio legislature passed the Uniform Power of Attorney Act (UPOAA) in 2012.

The UPOAA says that unless certain “hot powers” are specifically granted in a Power of Attorney document, an agent cannot do the following: (1) create a trust or make changes to an existing trust; (2) make gifts; (3) create or change rights of survivorship for certain assets; (4) change beneficiary designations; (5) allow others to serve as the agent; or (6) waive rights to be a beneficiary under certain annuities and retirement plans.

If these “hot powers” identified above are blindly granted to the agent in a Power of Attorney, he or she has almost unlimited power to deplete assets or change an estate plan. One could argue that everyone should just leave these “hot powers” out of their Power of Attorney to prevent that from happening.

However, there are certain situations where it might be necessary for someone to grant these powers to his or her agent, and he or she may not realize it unless they consult with an estate planning attorney. For example, effective August 2016, Ohio Medicaid law now requires that a Medicaid recipient living in a nursing home set up a trust if the recipient’s monthly income exceeds a certain limit. Let’s say a Medicaid recipient has dementia and is she determined to be incapacitated. In the recipient’s Power of Attorney, the agent is not granted the specific power to set up trusts on the recipient’s behalf. Since the recipient herself lacks the capacity to set up trusts, she could become ineligible for Medicaid assistance and even evicted from the nursing home!

Furthermore, if an elderly person or couple wants to protect their nest egg from the nursing home, they may want to grant their agent the “hot power” to make gifts to family members in their Power of Attorney documents. That way, their agent can implement advanced Medicaid planning strategies on their behalf if the elderly person or couple becomes incapacitated. Advanced Medicaid planning typically requires making gifts to an irrevocable trust or to loved ones directly to protect assets from being depleted. These gifts must be made at least five years before applying for Medicaid or the applicant will be ruled ineligible for benefits for an extended period of time. Last minute Medicaid planning may require the agent to make gifts and purchase an annuity to pay for nursing home expenses during a period of Medicaid ineligibility.

If you already have a financial Power of Attorney in place, contact your estate planning attorney to find out what updates, if any, need to be made to your estate plan as a result of these recent law changes. If you don’t already have a financial Power of Attorney in place, contact an estate planning attorney right away. He or she can review your unique situation and determine which “hot powers” should be included in your Power of Attorney document. Your estate planning attorney can also counsel you through the important decision of selecting your trusted agent or co-agents.

Online Estate Planning Docs. Can Devastate-Money Can Be A Curse

Posted by heschlawadmin on April 27, 2016

Reason 2: Ignorance Is Bliss! Don’t be a fool and do your own Generic Online Estate Planning Documents

The second reason in our series on how online estate planning documents can devastate your family and leave them in financial ruin is because online documents are generic and will oftentimes make your plan more complicated and confusing for your family. If you have ever been in a position where a family member was sick or passed away, you know how much stress the situation can cause your family. Unfortunately, some people have good intentions of making things easier for their family by using online estate planning documents, but oftentimes that decision just makes matters worse for everyone. Online document users find it unnecessary to meet with a lawyer because they think that their situation isn’t complicated and that their online Will, Power of Attorney, and health care documents will suffice. However, online documents are overly generic and usually do not serve the needs of even the most basic family situations. In Reason 2 of this blog series, I will analyze how generic online documents can make matters worse for your family. More specifically, Part I of Reason 2 will address how customization issues can cause confusion and chaos for your loved ones.

Part I. Online documents don’t allow customization for your family’s unique situation – causing confusion and chaos for your loved ones

In estate planning, one size does not fit all. Over the years, I have found that no two families are alike. Each family has unique issues and online documents typically cannot address those issues. If your issues are overlooked or ignored, your estate plan will probably not work the way you intended. Most online documents lack the proper customization you need to address these overlooked or ignored issues.

For example, when you begin the online document process, the software will ask you for basic information such as who you want to serve as your children’s guardian under your Will. After careful consideration, you determine that you want your sister and her husband (your brother-in-law) to serve as co-guardians of your children under your online Will. After completing and signing your Will, you think your children will be properly cared for if something happens to you. However, do you want your brother-in-law raising your children if he and your sister get divorced or if your sister passes away? As a named co-guardian, your brother-in-law can present a strong case to the court that he should raise your children pursuant to the Will. Although it was your intention for him to raise your children with your sister, the Will does not address what happens upon death or divorce. An estate planning attorney should be able to recognize this co-guardian issue and could implement the appropriate contingency in your Will that would remove him as guardian upon your sister’s death or divorce. If you use online documents to name your children’s guardian, you might be unaware of this issue or unable to customize your documents to address that concern.

Furthermore, a lack of customization with online documents might cause the inclusion of wrong provisions in your documents. One essential estate planning document is the financial power of attorney (POA). This document allows your designated agent to make financial decisions for you on your behalf. A POA usually contains large amounts of standard boilerplate provisions that can be confusing to some people and may not be applicable to your situation. For example, buried in your online POA might be a provision that allows your agent to make unlimited gifts to anyone. For some, unlimited gifting might be necessary. For others, unlimited gifting simply gives your agent a wonderful opportunity to deplete all of your assets. Unfortunately, elder abuse is very common and it’s usually done by those who are appointed as POA.

Online document providers are not attorneys and do not counsel and recommend what provisions you should have in your documents. Online providers do provide an option for you to consult with an attorney. Will that attorney practice near you and be available to meet with you face to face? Will you be able to select an attorney that has the experience in estate planning that you need?

In conclusion, those who use online estate planning documents might think that estate planning is as simple as filling names into blanks. In reality, estate planning is complicated and needs to be customized to your specific needs even in the simplest of situations. Simply filling in blanks can cause chaos for your loved ones down the road. Online estate planning websites want you to believe that you have peace of mind that your affairs will be in order because ignorance is bliss! It has been often said that every attorney who represent himself or herself is a fool.

Bill Hesch is an attorney, CPA, and PFS (Personal Financial Specialist) who is licensed in Ohio and Kentucky and helps clients get peace of mind with their tax, financial, and estate planning. He focuses his practice in the areas of elder law, corporate law, Medicaid planning, tax law, estate planning, and probate in the Greater Cincinnati and Northern Kentucky areas. His practice area includes Hamilton County, Butler County, Warren County, and Clermont County in Ohio, and Campbell County, Kenton County, and Boone County in Kentucky.

Back to Basics: Ohio and Kentucky Medicaid

Posted by heschlawadmin on August 7, 2014

With a record number of people above retirement age in the United States, many children are now facing the challenge of deciding long-term care and medical options for their parents. A large part of the process is dealing with Medicare and Medicaid. However, most people do not truly understand what Medicaid is or how the program works. This article reviews the basics of Medicaid and how it may affect your planning process.

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Elder Law Attorney

Posted by heschlawadmin on April 4, 2013

When many people retire, they assume that their finances are in order and that they will live out their retirement comfortably in their homes. Unfortunately, as retirees age, the chances of suffering long-term illness or a serious injury tends to increase. Sadly, and much too often, families are not prepared for the changes that can occur when an older family member suffers an injury or illness that may require that person to spend the rest of his or her days in an assisted living facility or nursing home. An elder law, estate planning, and Medicaid planning attorney can help mitigate some of these problems and give families peace of mind by utilizing different tools and strategies to help families plan ahead for these situations.

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Medicaid Planning

Posted by heschlawadmin on March 12, 2013

Many people wonder how to protect their assets lawfully, while still remaining eligible for benefits like long-term care. The whole notion of transferring assets, in anticipation of a nursing home or assisted living facility, is so that the cost of long-term care (sometimes running upwards of $80,000 annually) can be covered by Medicaid.

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Senior Citizen Issues

Posted by heschlawadmin on March 5, 2013

Bill Hesch is a Cincinnati and Northern Kentucky elder law attorney who focuses on the complicated legal, tax, and financial planning issues confronting senior citizens. Elder Law, or special needs law, is unique in that it is defined by the needs of the client rather than a particular field of law or other legal distinction.

An elder law attorney will normally address issues including:

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