Fong Law Group

Britney Spears Case Puts Renewed Focus on Guardianships and Less Restrictive Alternatives

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights. While a full guardianship may be necessary for many individuals who are incapable of managing their own affairs due to dementia or intellectual, developmental or mental health disabilities, the Spears case underlines the option of more limited alternatives.

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian" or a "conservator," depending on the state.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The National Center for State Courts says that about 1.3 million adults are living under guardianships or conservatorships with some $50 billion in assets.

The standard under which a person is deemed to require a guardian differs from state to state, and because guardianships are subject to state law, data on them is hard to collect and protections against abuse vary widely.  Netflix’s popular movie, I Care a Lot, spotlighted some weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. 

The Spears Case: An Unusual Situation

Britney Spears has been under a court-ordered conservatorship that has controlled her career and finances since 2008. Her father, Jamie Spears, was appointed her temporary conservator when the pop singer was allegedly struggling with mental health issues and had been hospitalized, and a Los Angeles court later made the conservatorship permanent.

On July 14, a Los Angeles judge approved the resignation of Spears’s court-appointed lawyer and granted her request to hire her own lawyer. The 39-year-old singer told the judge that she wants to end the long-running conservatorship that put her father in charge of her estimated $60 million fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. "I'm here to get rid of my dad and charge him with conservatorship abuse," she said.

Whatever the merits of this controversial case, what makes Spears's situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly is the fact that until now Spears was represented by a court-appointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

In the case of an elderly person who may no longer be able to handle some or all of her own affairs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Many people in need of help can make responsible decisions in some areas of their lives but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn't the answer at all. If a person can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. "Supported decision making" is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is "incapacitated," which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person in the driver's seat. Third, it is much less expensive and time-consuming.

Another option is a revocable or "living" trust that can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Experts say that Britney Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)

If you have questions about what type of guardianship may be right for your family member, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your elder law attorney today.

For an article on what may lie ahead in the Britney Spears case, click here.

For an article by University of Virginia Family Law Professor Naomi Cahn on how guardianships can lead to abuse, click here.

The Film 'I Care a Lot' Highlights Vulnerabilities in the Guardianship System

Netflix’s popular new movie, I Care a Lot, may be far-fetched in a lot of ways, but it does highlight some real weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. Fortunately, steps can be taken to avoid the guardianship system and the kind of nightmare the film portrays. 

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual ("ward"). The guardianship process usually starts when a family member or social worker notifies the court that someone can't take care of him- or herself. The court often appoints a family member as guardian. However, if the family can't agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward's best interest.

I Care a Lot follows one such public guardian who exploits the system to gain control of her wards’ estates. The guardian, Marla Grayson, typically petitions for an “emergency guardianship” without notifying the ward. In the case that takes up most of the film, Marla appears on the doorstep of a very surprised Jennifer Peterson with a court order declaring Peterson incompetent (she is nothing of the sort) and forcing her to relocate to a long-term care facility. Marla has already arranged for Jennifer’s doctor to declare Jennifer incompetent, and Marla also has a deal with a long-term care provider to admit Jennifer to his facility. And because it is an emergency guardianship, Jennifer is not required to be notified to appear in court to defend herself. 

Then, without Jennifer’s knowledge or consent, Marla takes control of her life and finances. After Jennifer is moved to the care facility, Marla begins the process of selling her house and belongings and taking a generous cut of the proceeds. From there, the movie takes a lot of twists and turns that we won’t reveal here, but the starting premise is unfortunately not Hollywood fantasy.

The film’s premise is in fact quite similar to a real-life case involving Nevada public guardian April Parks. As guardian for hundreds of wards, Ms. Parks, took over their lives, sold their belongings, and charged their estates hundreds of dollars an hour while doing so. Over her 12 years as a public guardian, Ms. Parks built relationships with hospitals and medical providers to refer patients to her and found doctors who were willing to declare her targets incompetent. Families often found out too late that their loved one was under guardianship and beyond their legal control. 

Ms. Parks is clearly at the far end of guardianship exploitation and has been sentenced to 16 to 40 years in prison, but there are other unscrupulous guardians still exploiting the system. Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians leads to abuse. Courts often do not have the resources necessary to provide proper oversight, and only a small minority of states certify their professional guardians. 

Not all states are equally vulnerable to guardianship exploitation. For example, New York’s guardianship system requires that an independent evaluator meet with the ward before an incapacitation hearing. And Arizona requires that its professional guardians be licensed through the state and that the ward have an attorney present during the incapacitation hearing, among other protections. Florida’s governor signed a law in 2019 requiring guardians to report details of payments, among other things. Nevada has also enacted a number of reforms, including requiring that individuals subject to guardianship be represented by an attorney. And in a rare display of bipartisanship, Congress passed a bill in 2017 that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts. 

While some states have begun passing reforms, there is more to be done. The Unform Law Commission, which provides states with model legislation, has proposed the Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act (UGCOPAA).   The law would allow a court to order a protective arrangement rather than a full guardianship when appropriate, require that notice of the guardianship be sent to family, and prevent the guardian from barring family members from visiting the ward, among other things. So far only Washington and Maine have enacted the model law. 

Regardless of your state’s laws, the best approach is to avoid the need for guardianship and conservatorship entirely by putting durable powers of attorney and health care proxies in place ahead of time when you can choose the person you would like to make decisions for you when necessary. Even if you're not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.

How to Plan Your Funeral

Thinking about your funeral may not be fun, but planning ahead can be exceedingly helpful for your family. It both lets them know your wishes and assists them during a stressful time. The following are steps you can take to plan ahead:

• Name who is in charge. The first step is to designate someone to make funeral arrangements for you. State law dictates how that appointment is made. In some states, an informal note is enough. Other states require you to designate someone in a formal document, such as a health care power of attorney. If you do not designate someone, your spouse or children are usually given the task. 
• Put your preferences in writing. Write out detailed funeral preferences as well as the requested disposition of your remains. Would you rather be buried or cremated? Do you want a funeral or a memorial service? Where should the funeral or memorial be held? The document can also include information about who should be invited, what you want to wear, who should speak, what music should be played, and who should be pallbearers, among other information. The writing can be a separate document or part of a health care directive. It should not be included in your will because the will may not be opened until long after the funeral. 
• Shop around. It is possible to make arrangements with a funeral home ahead of time, so your family does not have to scramble to set things up while they are grieving. Prices among funeral homes can vary greatly, so it is a good idea to check with a few different ones before settling on the one you want. The Federal Trade Commission's Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things. 
• Inform your family members. Make sure you tell your family members about your wishes and let them know where you have written them down. 
• Figure out how to pay for it. Funerals are expensive, so you need to think about how to pay for the one you want. You can pre-pay, but this is risky because the funds can be mismanaged or the funeral home could go out of business. Instead of paying ahead, you can set up a payable-on-death account with your bank. Make the person who will be handling your funeral arrangements the beneficiary (and make sure they know your plans). You will maintain control of your money while you are alive, but when you die it is available immediately, without having to go through probate. Another option is to purchase a life insurance policy that is specifically for funeral arrangements. 

Taking the time to plan ahead will be a big help to your family and give you peace of mind. 

What Is the Difference Between a Living Will and a Do-Not-Resuscitate Order?

It is a very good idea to create advance directives in order to plan for the possibility that you may one day be unable to make your own medical decisions. In doing so, there can be confusion about the difference between a living will and a "do-not-resuscitate" order (DNR). While both these documents are advance medical directives, they serve different purposes.

A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone -- you can always revoke it at a later date if you wish to do so.

When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options. 

A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

In addition to a living will, you will also need a health care proxy or broader medical directive. 

What's a Health Care Proxy and Why Do I Need One? 什麼是醫療授權書，為什麼我需要這份文件？(中英對照)

If you become incapacitated, who will make your medical decisions? A health care proxy allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out, and it is especially important to have a health care proxy if you and your family may disagree about treatment. Without a health care proxy, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so.

In general, a health care proxy takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care proxy itself. If you later become able to express your own wishes, you will be listened to and the health care proxy will have no effect.

If you are interested in drawing up a health care proxy document, contact your attorney.

當你失去能力時，誰會為你作出醫療上的決定？醫療授權書允許您指定某人來為您作出醫療上的決定。這將確保您的醫療指示得以執行，尤其是如果您和您的家人對治療的方式有不同的看法，那麼醫療授權書尤為重要。如果沒有醫療授權書，您的醫生可能會為您提供一些您不想接受的治療。

一般而言，醫療授權書僅在您需要治療並且醫生確定您無法表達您的治療意願時才生效。這完全取決於特定的州的法律和醫療授權本身的條款。如果您以後能夠表達自己的意願，您的意願會被聽取，而醫療授權書將不起作用。

如果您有興趣制定醫療授權書，請跟資產規劃律師聯繫。

Aging in Place: Reality or Dream? 老有所屬：是現實還是夢想？ (中英對照)

“As lifespans increase, our elders grow in number, and government elder benefits become more politically tenuous, the need for empathetic family elder caregivers keeps increasing.

Seniors crave their independence and a sense of place. Almost all wish to remain in their own homes and to “age in place.” Being independent in your senior years benefits everyone. However, if aging brings illness, professional home caregiving may be unaffordable, says The Winston-Salem Journal in the article “Who will help me to age in place?”

Even though they want to remain independent, family member participation may be necessary for this to happen. Family caregivers may live with aging parents, serving as guardians, trustees or power of attorney agents on their parent’s behalf. They may perform many tasks, including cooking, cleaning and monitoring their medical or home care. They may take care of the home and take aging parents on outings.

Loyalty to aging parents runs the gamut, from daily contacts and living together, to children who vanish as soon as they are financially independent. While our biology may dictate that close family members are genetically predisposed to care for us most, it’s not everyone’s experience.

If your goal is to have parents, children and grandchildren all spend time together as the generations move through their lives, the time to start is while you are parenting. The most important thing you can do to increase the likelihood of having family members who value each other and care for each other, is to raise children with love and kindness.

You should limit the amount of time that children spend with electronic devices. Making family connections and teaching caregiving skills within the family, requires time and attention. Teach your children empathy and caregiving through gardening, caring for plants and pets and letting them see how you take care of siblings, parents, grandparents, friends and the less fortunate through volunteer work.

Our children learn more from what they see, than what we say. By teaching your children to respect and care for those they love, you will be creating a family legacy based on your values. This will be as much a part of them, as any inheritance you can leave them.

Part of caregiving is taking care of the legal and financial side of your life. Ensure that your family members have an estate plan in place, including a will, financial power of attorney and health care power of attorney. Caregiving for others involves preparing for the ups and downs of life. This shows your children that there are things we do for ourselves and for others that make life easier for those we leave behind. It is an important life lesson for each generation.

Reference: The Winston-Salem Journal (March 5, 2019) “Who will help me to age in place?”

“隨著人的壽命越來越長，老人的數目也日漸增加，政府老人的福利變得更加政治化，對理解老人的家庭護理人員的需求不斷增加。

老人渴望有一個獨立及舒適環境。幾乎所有人都希望可留在自己的家中終老。在你年老時可獨力照顧自己則令家人受惠。然而，如果年老帶來疾病的話，專業的家庭護理費用可能負擔不起，The Winston-Salem Journal在文章“Who will help me to age in place?”中說。

即使他們想獨立，也可能需要家人幫助。照顧老人的家庭成員可以與年邁的父母一起生活，代表其父母擔任監護人，受託人或財務代理人。他們可以執行許多任務，包括烹飪，清潔和監控他們的醫療或家居護理。他們也可以打理房子，並帶年邁的父母外出。

對年老父母忠誠的幅度可以從日常接觸和共同生活到在經濟上獨立後就消失的子女。雖然在生物學角度上親密的家人是最關心自己的，但並不是每個人都一樣。

如果你的目標是讓父母，子女和孫兒一起度過，那麼應在你養育子女的時候開始。如果你想能讓家人互相尊重並互相照顧，最重要的就是要用愛及仁慈去撫養子女。

您應該限制子女花在電子設備上的時間。在家中建立關係和教導互相照顧的技能,透過園藝，照顧植物和寵物教導你的子女同情心和如何照顧其人，這都需要時間和精神。​​讓他們看看你如何照顧兄弟姐妹，父母，祖父母，朋友和當義工照顧不幸的人。

我們的子女從他們看到的東西中學到的東西比我們說的多。通過教育子女懂得尊重和關心他們所愛的人，你便可以用自己的價值觀創造你的家庭遺產。這將是其中的一部分，因為他們將繼承你留下給他們的任何東西。

處理好你法律和財務方面也是照顧的一部分。確保您的家人有資產計劃，包括遺囑，財務授權書和醫療授權書。照顧他人包括為人生的高低潮作準備。這讓您的子女看到你是如何為自己和其他人做事，讓在生的人生活可以更輕鬆。這對每一代人來說都是重要的人生課程。

參考: The Winston-Salem Journal (March 5, 2019) “Who will help me to age in place?”

Kids Grown Up? Protect Them with These Three Documents 子女都長大了？用這三份文件來保護他們 (中英對照)

“As a parent, you might not fully appreciate that when your child turns 18 years of age, at least in the eyes of the law, you no longer have certain inherent rights related to medical and financial details about your adult child.”

Without the right documents in place, you do not have the legal right to protect your own children, once they turn 18, says The National Law Review in an unsettling but must-read article titled “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children.”

There are only three documents and they are fairly straightforward. There is no reason not to have them in place. If your adult child was incapacitated by an accident or an illness, you would want to speak with the medical staff to find out how they are and what decisions need to be made. Whether you were making a phone call or arriving at the hospital, a nurse or doctor would not be permitted to speak with you about your own adult child’s condition or be involved with making any medical decisions.

It sounds unreasonable, and perhaps it is, but that is the law. There are steps you can take to ensure that you are not in this situation.

HIPAA Authorization Form gives you the authority to speak with healthcare providers. This is a federal law (Health Insurance Portability and Accountability Act of 1996) that safeguards who can access an adult’s private health data. HIPAA prevents healthcare providers from revealing any information to you or anyone else about a patient’s status. The practitioners could face severe penalties for violating HIPAA.

This is why you want to have a HIPAA authorization signed by your adult child and naming you as an authorized recipient.  This will give you the ability to ask for and receive information about your child’s health status, progress and treatment. This is especially important, if your child is unconscious or in an unresponsive state. The alternative? Going to court. That’s not what you want to be doing during a health emergency.

A Healthcare Power of Attorney needs to be in place, so you can be named his or her “medical agent” and have the ability to view their medical records and make informed decisions on their behalf. Without this (or a court-appointed guardianship), healthcare decisions will be in the hands of healthcare providers only. That’s not a bad thing, if you implicitly trust your child’s doctor. However, if your child is incapacitated in an out-of-town hospital with healthcare providers you don’t know, you will want to be able to make decisions on his or her behalf.

Note that physicians prefer a single medical agent, not a handful. The concern is that if time is a critical factor and a group of family members do not agree on care, it may compromise the healthcare services that can be provided. You can name multiple agents in priority order. A mother might be listed as the medical agent, and if she is unable or unwilling to serve, the second person would be the father.

The third document is a General Power of Attorney. This would give you the right to make financial decisions on your child’s behalf, if they were to become incapacitated. You would have the legal right to manage bank accounts, pay bills, sign tax returns, apply for government benefits, break or apply a lease and conduct activities on behalf of your child. Without this document, you won’t be able to help your child without a court-appointed conservatorship.

Keep in mind that these documents need to be updated every few years. If you try to use an older document, the bank or hospital may not accept them. Your adult child also has the ability to revoke these documents at any time, just by saying they revoke them or by putting it in writing. If you have an adult child living out of state, you want to have these documents prepared for your home state and their state of residence.

Finally, this is not a time to download forms and hope for the best. An estate planning attorney will know more specifically what forms are used in your state and help you make sure that they are prepared correctly.

Reference: The National Law Review (Feb. 11, 2019) “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children”

“作為父母，您可能不會完全明白，當您的子女年滿18歲時，您不再擁有您的成年子女有關醫療和財務的某些固有權利。但這是法律。”

沒有正確的文件，一旦他們年滿18歲，你就沒有合法權利去保護自己的子女，The National Law Review在一篇令人不安但必讀的文章中寫道：“Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children.”

有三份相當簡單的文件你沒有理由不擁有。如果您的成年子女因意外或疾病而喪失能力，您可能希望與醫務人員交談，了解他們的狀況，以及要怎樣作出醫療決定。無論您是打電話還是直接到醫院，你都不被允許護士或醫生與您談論您的成年子女的病情或做出任何醫療決定。

這聽起來很不合理，但這就是法律。您可以採取一些措施來確保您不會遇到這種情況。

HIPAA授權表格授權您與醫療人員交談。這是一項聯邦法律(Health Insurance Portability and Accountability Act of 1996），規定誰可以取得私人醫療記錄。 HIPAA防止提供醫療服務的人向您或其他任何人透露有關患者的情況。違反HIPAA的人可能會面臨嚴厲的處罰。

這就是為什麼您希望獲得您成年子女的HIPAA授權，並將您命名為代理人。這將使您能夠取得有關您子女的健康狀況，進展和治療的信息。如果您的子女失去意識或處於無反應狀態，這一點尤為重要。替代方案？去法院。但這不是在緊急情況下你想做的事情。

醫療授權書需要到位，因此您可以被命名為他們的“醫療代理人”，以便可以查看他們的醫療記錄並且代表他們做出明智的決定。如果沒有這文件（或法院指定的監護權），醫療決定將由提供醫療服務的人負責。如果你信任你子女的醫生，這不是一件壞事。但是，如果您的子女在外地的醫院失去自理能力而那些提供醫療服務的人您並不認識，那您便希望可代表他們做決定。

請注意，醫生較喜歡單一的醫療代理，而不是多個。主要是因為如果時間是一個關鍵因素，而有些家庭成員不同意護理，便可能會影響醫療服務。您可以按優先次序命名多個代理。母親可被列為醫療代理人，如果她不能或不願意，第二個人可以是父親。

第三份文件是財務授權書。這將使您有權代表您的子女做出財務決定，如果他們失去自理能力。您將擁有管理銀行賬戶，支付賬單，簽署納稅申報表，申請政府福利，中斷或申請租賃以及代表您子女行事的合法權利。沒有這份文件，除非有法院指定的監管權，您將無法幫助您的子女。

請記住，這些文件需要每隔幾年更新一次。如果您嘗試使用較舊的文件，銀行或醫院可能不會接受。您的成年子女也可以隨時撤銷這些文件，只需說明他們撤銷這些文件或將其寫下。如果您的成年子女居住在外州，您希望在您的老家及他們所居住的州備好這些文件。

最後，現在不是下載表格和希望好事發生的時候。資產規劃律師將更具體地了解您所在州使用的表格，並幫助您確保這些文件是准確的。

參考: The National Law Review (Feb. 11, 2019) “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children”

Emergency Planning for Seniors: Simple to Do, Critical in a Crisis

“The common advice for a crisis is to remain calm and try to think clearly. That's not always possible, but prior planning and preparation – much like with fire drills or tornado drills – can help you to stay focused and make better decisions during an emergency situation.”

What if a crisis should strike an elderly person living alone, or a senior couple who lives in their own home? No one likes to think that it will happen, but inevitably it does, says WRAL in a useful article titled “Having an emergency plan critical for safety and health of seniors.” It’s good to stay calm—and it’s even better to stay calm and quickly access the information and resources that could make the difference between life and death.

Sounds dramatic, but it’s true.

Why should you know how you’ll react in a crisis? The best way, say aging experts, is to think about the situation and the different parts in advance. Knowledge is power, and nowhere is this truer than in emergency situations.

Start by discussing health concerns with your doctor. When should you call the office, and when should you call 911? What is a normal ache or pain, and what kind of pain or sudden change signals an emergency?

If you are not sure what you or a loved one is feeling, call 911. There’s no need to hesitate because you’re not sure about whether it’s an emergency. Dispatchers are trained to identify emergencies and they can assess the situation quickly, even if you can’t.

One thing we should all have, regardless of our age, is a printed-out list of medications, diagnoses, names and phone numbers of medical providers and family contact information. This should be kept in a place where emergency responders and family members will have access to it quickly. EMS workers may not have time to review your medicine chest or a stack of bottles on the night table, but they will need to know what medications you are taking. A list—and one that you keep current—could save your life.

As a crisis unfolds, another list becomes important: documents from your estate plan. That includes your general power of attorney, health care power of attorney, and DNR (Do Not Resuscitate, if that is appropriate in your situation). The health care power of attorney will cover any health care decisions that arise, and the general power of attorney will cover financial, business and personal decisions.

Copies of these designations should be kept easily at hand at home. Make sure to tell the people you have appointed that you have done so, and what the expectations are for them.

Plans for what happens after the emergency has passed the crisis stage should be discussed, also preferably in advance. If the emergency was a fall or the senior is no longer capable of living independently, there may need to be changes made to the senior’s living situation. Rather than being forced to make a fast decision about a new living situation after an emergency, devote time to touring independent or assisted living communities to make a transition to a new home easier, than doing so in haste.

Identifying possible future living arrangements in advance also provides the opportunity to make the necessary financial arrangements. The hope is to prevent the senior from feeling like they’ve abruptly gone from the comfort and familiarity of their own home to a new and unwelcoming environment with no advance notice.

Preparing for a crisis in the short and long term may require some difficult conversations, but with the right care and planning, it may make life easier and more pleasant for the senior and the family.

Reference: WRAL (Jan. 2, 2019) “Having an emergency plan critical for safety and health of seniors”

Estate Planning Checklist 資產規劃清單 (中英對照)

“When most people hear the term “estate planning,” they think of a will. Although planning your estate does involve making a will, it also involves a few other key details.”

A will is just one of a handful of documents every adult should have in place to protect themselves while they are living, and their heirs and families after they have passed. Following are the “5 estate planning must-haves,” according to an article from the Augusta Free Press:

1. Wills and Trusts. Your will directs the distribution of your assets. Without a will, the court will determine who gets your possessions, real property and any other assets, following the laws of your state. Depending on your situation, you and your heirs may benefit from setting up trusts to protect your assets from the probate process, maintain your privacy and possibly avoid some taxes. Keep in mind that if the will or trust is not created properly or doesn’t follow your state’s laws, it could be challenged or deemed invalid. Work with an experienced estate planning attorney to protect your family.
2. Many of your accounts—bank accounts, investment accounts, retirement accounts, insurance policies—may already have a named beneficiary, who will inherit the account upon your death. However, if you have not updated those names recently, you may find the wrong person inheriting your assets. Once that occurs, there is no legal means of transferring the assets to another person. Always make sure you have a contingent beneficiary, so if the primary beneficiary dies before you, or for some reason declines to accept the asset, you will have had an opportunity to choose another person to receive the asset. If there is no contingent beneficiary, the court may make that decision.
3. Letter of Intent. It must be said that this is not a legally binding document. However, the information it could provide to your loved ones might be very helpful, as they move through the process of settling your estate. It can explain why you structured your asset distribution the way you did, why you would want a given family heirloom passed to a specific family member, or what you would like to have happen at your funeral. If you are not able to discuss these matters in a face-to-face conversation with your loved ones, this is a useful alternative.
4. Power of Attorney. Planning for incapacity is an important part of estate planning. If you become incapacitated, you’ll need to have already given someone the power to manage your financial affairs. If you do not have a power of attorney, your family will need to turn to the court system, which will create delays and added stress. You’ll also want to have a healthcare power of attorney in place. Most people assume their spouses will immediately take on this role, but not everyone is capable of making the hard decisions, especially during an emergency situation.
5. Legal Advice. Estate planning laws are governed by your state of residence. Your best option is to make an appointment with a local estate planning attorney to learn whether there are any other documents and plans you need to put into place. Some law firms provide a means of documenting assets to ensure that, at the time of death, your family is not embarking on a scavenger hunt to identify assets. In certain states, you can assign a funeral representative to make sure your funeral, burial or cremation and memorial service wishes are carried out. Your attorney will know what you and your family need.

Reference: Augusta Free Press (Nov. 27, 2018) “5 estate planning must-haves”

“大多數人聽到“資產規劃”這個詞時，他們會想到遺囑。雖然規劃你的資產確實牽涉製定遺囑，但它還涉及其他一些其他關鍵細節。”

遺囑只是每個成年人在生時保護自己以及在他們去世之後保護他們的繼承人和家人的少數文件中的其中一份。根據 Augusta Free Press的一篇文章，以下是“5 estate planning must-haves,”：

1.遺囑和信託。您將指定您的資產如何分配。如果沒有遺囑，法院將根據您所在州的法律確定誰擁有您的財產，不動產及任何其他資產。根據您的情況，您和您的繼承人可於通過建立信託以保護您的資產免受遺囑認證過程的影響，維護您的私隱並可能避免一些稅收。請記住，如果遺囑或信任未有正確建立或不符合您所在州的法律，則可能會被質疑或視為無效。與經驗豐富的資產規劃律師合作以保護您的家人。

2.受益人。在您眾多的賬戶 - 銀行賬戶，投資賬戶，退休賬戶，保險單 - 可能已經有一位指定的受益人，他將在您去世時繼承這些賬戶。但是，如果您最近沒有更新指定受益人，您可能會發現繼承您資產的人並不是您想的人。一旦發生狀況，就沒有合法的方式將資產轉讓給他人。確保您有後備受益人，如果主要受益人在您之前去世，或由於某種原因拒絕接受該資產，您將有機會選擇其他人來繼承資產。如果沒有後備受益人，法院可以作出決定。

3.意向書。必須說這不是具有法律約束的文件。但是，它可以為您的家人提供的信息可能非常有用，因為他們正在解決您的財產問題。它可以解釋您如何按照自己的方式去分配資產，為什麼您希望將特定的家傳之寶傳給某一家庭成員，或者您希望在您的葬禮如何進行。如果您無法與親人面對面討論這些問題，這是一個有用的選擇。

4.授權書。為喪失能力規劃是資產規劃的重要部分。如果你喪失能力，你就需要授權某人去管理你的財務。如果您沒有授權書，您的家人將需要轉向法院系統，這會造成延誤並增加壓力。您還想有醫療授權書。大多數人認為他們的配偶會立即擔任這個角色，但不是每個人都能做出艱難的決定，特別是在緊急情況下。

5.法律諮詢。資產規劃法例由您所居住的州去管轄。您最好是預約當地的資產規劃律師，了解是否還有其他文件和計劃需要落實。一些律師事務所提供了記錄資產的工具，以確保在您去世時，您的家人不需像進行尋寶遊戲去識別您的資產。在某些州，您可以指派一名葬禮代表，以確保您的葬禮，土葬或火葬和追悼會的願望得以實現。您的律師會知道您和您的家人需要什麼。

參考: Augusta Free Press (Nov. 27, 2018) “5 estate planning must-haves”

How Will You Pay for Nursing Care? 你將如何支付護理費？ (中英對照)

“While the U.S. inflation rate was 2.1% for the first half of the year, the cost of a one-room assisted living facility grew by 6.67% from 2017 to 2018, Genworth Financial says.”

In other words, you’re going to need a much heftier retirement fund or a better plan, to prepare for the possibility of needing long term care. A recent article from CNBC, “This retirement expense has hit $100,000 annually–and it’s continuing to rise,” reports that a larger number of older adults will need specialized care. Another problem is a shortage of skilled workers. Care expenses will rise with wage demands. Your best bet: start planning now for how you’d like to receive—and pay for—your care.

Overall, the rising cost of care has outpaced inflation. The CPI (Consumer Price Index) for all urban consumers was 2.1% for the first half of 2018. The annual median cost of a room at an assisted living facility grew faster, and even the cost of a shared room in a nursing care facility increased—by 4.11%.

Here’s a look at the most expensive places to seek care:

Aging in Alaska is the most expensive state, if you need to be in a nursing home. The annual median cost for a private room: $330,873, according to the Genworth study. An alternative might be assisted living facilities. However, they offer less medical care or assistance. There’s also the option of having a home health care aide come to visit.

Home health care services cost the most in Hawaii, where patients pay an annual cost of $68,640 for just 44 hours a week of care at home. The growing demand for support services, is likely to push the cost of care even higher.

People planning to retire in five years or so, can prepare by working with a knowledgeable advisor. The first question is, where do you want to receive care? The next one is to plan for the worst-case situation, where you or a spouse need the care that only a skilled facility can provide.

The solution, if you can get coverage, may be a long-term care insurance policy, or a life insurance policy with a long-term care feature. The cost may be high but the costs you might incur without that coverage will be way higher.

Another solution is Medicaid (Medi-Cal in California).  In most states, Medicaid is the only government program that can nursing care.  However, Medicaid is not open to everybody.  You must pass a means-test in order to qualify for Medcaid.  Medicaid involves a series of complex rules and it is not easy to tell right away whether a person qualifies for Medicaid.  If you want to know whether you qualify for Medicaid, you should contact an attorney specializing in this area. 

Part of your planning should also include selecting trusted people, family or friends, who can be named to take over your financial matters (power of attorney) or medical care (health care power of attorney), should you become incapacitated, by illness or injury.

Your estate planning attorney will be able to help you prepare these documents, along with a comprehensive estate plan that protects you and your family while you are living and after you have passed.

Reference: CNBC (Oct. 20, 2018) “This retirement expense has hit $100,000 annually–and it’s continuing to rise”

Genworth Financial表示，“雖然上半年美國通脹率為2.1％，但室內輔助生活設施的成本從2017年到2018年增長了6.67%。”

換句話說，你需要一個更強大的退休基金或更好的計劃，為需要長期護理的可能做準備。 CNBC最近發表的一篇文章稱，“This retirement expense has hit $100,000 annually–and it’s continuing to rise”  大多數老人需要專門護理。另一個問題是技術工人短缺。護理費將隨工資需求而增加。您最好的選擇是現在就開始計劃您希望如何接收並支付您的護理費。

總體而言，護理成本的上升超過了通貨膨脹。 2018年上半年所有城市消費者的CPI（消費者價格指數）為2.1%。可是輔助生活設施的房間年度中位數成本增長更快，甚至護理設施中共用房間的成本也增加了 4.11%。

以下是護理費最昂貴的地方：

如果你需要住在養老院，阿拉斯加是養老最昂貴的州。根據Genworth的研究，私人房間的年度中位數成本為330,873美元。另一種可能是輔助生活設施。但是，他們提供的醫療保健或援助較少。還有另一個選擇是請家庭醫療助手前來探望。

在夏威夷，家庭醫療保健服務的成本最高，患者每週僅44小時就需支付一年68,640美元的費用。對於支援服務的需求不斷增加，這可使護理成本更高。

計劃在五年之內左右退休的人可以通過與專業人士合作來做好準備。第一個問題是，您想在哪裡接受護理？下一個為最壞的情況打算，您或配偶需要入住護老院才可護理。

如果保險些，解決方案可能是長期護理保險政策，或具有長期護理功能的人壽保險。成本可能會很高，但如果沒有覆蓋所有範圍，可能會產生更高的成本。

另一種解決方法是醫療補助（加州白卡）。 在大多數州，醫療補助是唯一可以提供護理的政府計劃。 但是，醫療補助計劃並不對所有人開放。 您必須通過一連串的經濟審查才能獲得醫療補助資格。 醫療補助涉及一系列複雜的規則，並且不能立即便判斷一個人是否有資格獲得。 如果您想知道自己是否有資格獲得白卡，您應該聯繫專門從事該領域的律師。

您的計劃還應包括選擇可信賴的人，家人或朋友為您在生病或受傷而無法處理財務或醫療時去幫你處理有關事務。

您的資產規劃律師將能夠幫您準備這些文件，一個全面的資產計劃能在你在生及去世後去保護您和您的家人。

參考: CNBC (Oct. 20, 2018) “This retirement expense has hit $100,000 annually–and it’s continuing to rise”