Hamilton Herald Masthead


Front Page - Friday, November 13, 2015

Stomping through the elder care minefield (elder law: part two)

Problems... and Solutions...

Paul Hatcher

I learned about elder care the worst possible way, i.e., through personal experience. Legal education tells you how to plan an estate on the front-end and how to probate one at the back-end, but it doesn’t train you for the middle part, the minefield one faces in the general execution of one’s duties as the attorney-in-fact for an elderly person. Welcome to the brave, new world of hospital forms, assisted living facilities, nursing homes, government agencies, tough decisions, and misinformation. I figure there are maybe 30 ways to screw this up, and you are a genius if you spot 25 of them.

If your parents are not old now, they probably will be later. This may seem like an obvious point, but you need to have their wills and powers of attorney executed now while they are healthy and competent. The basic will package consists of a will, a power of attorney for health care, a power of attorney for contracts, and a living will. My dad signed his most recent will package in 2007. At that time, he was robust and mentally sound. He began to show signs of dementia and had a severe onset of osteoporosis in 2010. By the end of that year, he was in assisted living.

The power of attorney documents were the most important preparation we could have done. They have enabled me to service his bank accounts, sign checks, sign leases, sign hospital forms, deal with the Social Security Administration and the V.A. on his behalf, and otherwise manage his affairs without question or trouble from banks, doctors, government agencies, and care facilities. Last month, after consultation with his doctor and coordination with my brother and sister, I approved hospice care for my dad and terminated all extraordinary medical treatments. This might have been one of many hurdles that we avoided because of proper attorney-in-fact documents.

Each time your parent is admitted to a hospital, you will sign admission and treatment papers. Be careful how you sign. Remember to sign your parent’s name, by you as attorney-in-fact. Do not sign your name without indicating your capacity as attorney-in-fact. In the heat of the moment, and at the hospital, you will be uncharacteristically distracted, you may not notice that one of those signature lines is a personal guarantee. The ER admissions staff is not inclined to point that out to you, either. You are not expected to personally guarantee your parent’s debts, but it can happen, and the hospital has no objection to your doing it.

After entering assisted living, my dad still had a car for a few months, and we found out quickly that he was Mr. Magoo out there. He let me take the car away after a mishap in a parking lot. My power of attorney made the sale of the car easy.

I found out (after making a mistake on a V.A. application, as I will explain later) that there are important legal differences between nursing home care and assisted living. A nursing home is a facility for those requiring 24-hour medical care. By contrast, if the elderly person needs assistance with mobility, meals, and medication, but does not need round-the-clock hospital facilities, then assisted living is sufficient. In assisted living facilities, doctors make their rounds, usually weekly, and bring in home health care providers for acute procedures. Ambulances are called when hospitalization is required.

We discovered the hard way that some assisted living facilities focus on activities and lifestyle, but draw the line at providing more than moderate care and assistance to the elderly. This became a crucial problem for us and resulted in an unfair outcome for my dad. We initially put Dad into a high-profile facility that resembles a cruise ship: dining room, rec room, movies, live entertainment, a hair salon, an ice cream parlor, a fountain out front. As his condition deteriorated, he began to require more assistance than they cared to give. This became a chronic problem, and I regularly received calls at all hours from the facility’s staff to come over, stay with him, provide a sitter service, and otherwise assist.

In August of 2012, I got a call on a Sunday when I was in Nashville, moving my daughter into law school. The nurse informed me that my father was acting strange and making no sense, and I needed to “come get him.” She described the symptoms, and I told her to call him an ambulance to take him to the hospital. As it turned out, he had an infection, and with the addition of fluids and antibiotics, he was doing better by the time I arrived at the emergency room that night.

In due course, the facility’s director modified Dad’s care plan to require us to provide a 40-hour a week sitter, and later asked us to provide 24-hour care, which was prohibitively expensive. If we are providing all the care, we asked, why do we have Dad in a care facility? “What exactly do you all do?” we asked.

She informed us that since Dad was unable to feed himself without help and required more than one person for mobility assistance, he was beginning to exceed their scope of care.

I asked the director if this was the difference between assisted living facilities and nursing homes (it’s not; it was just their policy), and she was vague. I now know from the V.A. documents that if we had moved Dad to a nursing home, he would have lost his V.A. benefits. It had not yet occurred to me to call other assisted living facilities and inquire about their services.

In November last year, the director asked me to come by her office for a “care meeting,” the annual meeting to discuss his care plan for the coming year. Upon my arrival, she handed me an eviction notice.

We contacted other facilities, which assured us that Dad’s condition was normal and appropriate for assisted living. Feeding, clothing, bathing, and assisting elderly people is what they do. The manager of Dad’s new facility also told me that they had received several residents over the years who also had been kicked out of his old one.

The good news is that Dad is now getting the full-time care he needs. The bad news is that he did not mentally have another move in him. Old people do not like change. He misses the old place, misses his friends, and still asks me when he can go home.

When shopping for an elder care facility, ask the tough questions up front: Your parents’ condition will deteriorate, and they will no longer notice the movies and entertainment. Is this facility willing to feed, bathe, and clothe them when the time comes?

Since my dad is a Korean War veteran, he is entitled to an assisted living allowance under the G. I. Bill. This program, which addresses non-service-related disability, is administered by the Veterans Administration. Any veteran who served during wartime is so entitled.

Obtaining the benefit, though, took a long time. Given our ordeal, I suspect that most eligible veterans never get this benefit at all. Could it be that the system is designed to pay out as little as possible? There simply is no other reasonable explanation for what we experienced.

We first applied on Dec. 5, 2010, and we received final approval and a retroactive check a year and a half later, on July 16, 2012.

The local V.A. office lost our first application, which had to be resubmitted. Then my dad had to prove he was a veteran. The notice from the V.A. stated, “As you may know, there was a fire at the National Archives and Records Administration on July 12, 1973. If your military records were stored there on that date, they may have been destroyed in the fire. An original or a certified copy of your discharge showing dates of service and character of service is proof of service.” It was now incumbent upon us to document Dad’s veteran status. The destruction of the government records must surely cause many eligible veterans to lose their benefits. Incredibly, my dad still had his Honorable Discharge certificate from 1954.

In January of 2012, on another V.A. form, I mistakenly checked “yes” to the question, “Is he in a nursing home,” not yet knowing the difference between a nursing home and assisted living. The form did not explain the difference, either. Since nursing home care is covered by Medicaid, and V.A. benefits only apply to assisted living, this mistake kicked out Dad’s application again.

Sometime in 2011, I requested and received assistance from Congressman Chuck Fleischmann’s office. The assistant in the local office was Kerry Steelman, who got through the back door somehow and sped up the process. I wonder if Dad would have gotten his benefits without Kerry’s help.

My father has been hospitalized several times over the past few years, and he has also been in several rehabilitation facilities. Most were good. One wasn’t. Upon his admission there, I arrived to discover my father strapped to a chair. My dad was quite upset about it, and I told the floor nurse that he does not consent to being bound to a chair.

She explained that he came to the facility as a “fall risk,” and that this is what they had to do. Company policy. I told the nurse that I was removing my father from the facility immediately.

She pulled out a pen, picked up a clipboard, and asked, “Are you leaving against medical advice?” I did not understand the significance of the question.

My wife, a former nurse herself, responded, “No, we’re spending the night here and we will have the doctor approve his transfer in the morning.” Back in the room, my wife explained to me, “That was a trick question. If she checks ‘left against medical advice’ on the form, Medicare doesn’t pay.” That little power play by the floor nurse almost cost us some big bucks. We undid the straps, spent the night there, and the next day, Dad’s doctor transferred him out.

Be aware that Medicare has an appeal process if you get hit with an unexpected bill. Last year, an outpatient procedure turned into a three-day hospital stay. Because the doctor never formally admitted my dad, Medicare would not pay for the stay. We appealed due to the doctor’s error. Medicare ruled in our favor and the hospital bill was cancelled.

Personal liability. Levels of care. Government red tape. Lost military records. Straps. Leaving against medical advice. Coverage gaps. I suspect that Kafkaesque experiences are more the rule than the exception when one is stomping through the elder care minefield. As Bob Seger said, “I wish I didn’t know now what I didn’t know then.”