Fong Law Group

The Ins and Outs of Guardianship and Conservatorship

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," but called a "conservator" or another term in some states.

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. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In most states, anyone interested in the proposed ward's well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license. Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward.

The guardian of the property inventories the ward's property, invests the ward's funds so that they can be used for the ward's support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward's finances. In some states guardians must also give an annual report on the ward's status. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. 
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.
• Conservatorship. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.
• Revocable trust. A revocable or "living" trust 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.

Contact your attorney to discuss ways to protect against a guardianship.

Medicare Open Enrollment Starts October 15: Is It Time to Change Plans?

Medicare's Open Enrollment Period, during which you can freely enroll in or switch plans, runs from October 15 to December 7. Now is the time to start shopping around to see whether your current choices are still the best ones for you.  

During this period you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans. 

Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

According to the New York Times, few Medicare beneficiaries take advantage of Open Enrollment, but of those who do, nearly half cut their premiums by at least 5 percent. Even beneficiaries who have been satisfied with their plans in 2020 should review their choices for 2021, as both premiums and plan coverage can fluctuate from year to year. Are the doctors you use still part of your Medicare Advantage plan’s provider network? Have any of the prescriptions you take been dropped from your prescription plan’s list of covered drugs (the “formulary”)? Could you save money with the same coverage by switching to a different plan?

For answers to questions like these, carefully look over the plan's "Annual Notice of Change" letter to you. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions, and appeals. Medicare Advantage plans can change their benefit packages, as well as their provider networks.  

Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals' personal financial information. Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited. If you think you've been a victim of fraud or identity theft, contact Medicare. 

Here are more resources for navigating the Open Enrollment Period:

• Medicare Plan Finder, which helps you find a plan to match your needs: www.medicare.gov/find-a-plan
• Medicare coverage options: https://www.medicare.gov/medicarecoverageoptions/
• The 2020 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at:  medicare.gov/forms-help-resources/medicare-you-handbook/download-medicare-you-in-different-formats
• The Medicare Rights Center: www.medicareinteractive.org

Your State Health Insurance Assistance Program, which offers independent counseling: https://www.shiptacenter.org

Which Nursing Home Rating System Should You Trust?

Choosing a Nursing Home for a loved one is a difficult decision and it can only be made more confusing by the various rating systems. A recent study found that using both Medicare’s Nursing Home Compare site and user reviews can help with the decision making. 

The official Medicare website includes a nursing home rating system. Nursing Home Compare offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. However, Medicare’s rating system is far from perfect. The staff level and quality statistics ratings are based largely on self-reported data that the government does not verify. The ratings also do not take into account state fines and enforcement data or consumer complaints to state agencies.  Nursing homes have learned how to game the system to improve their ratings. 

While Nursing Home Compare doesn’t include consumer feedback, Yelp and other online platforms like Facebook, Google, and Caring.com allow users to review individual nursing homes. These user reviews are highly subjective, and it can be difficult to judge their legitimacy. These reviews are not usually taken seriously--for example, consumer guides to finding a nursing home do not usually suggest that consumers consult online reviews.  (It should be noted, however, that Caring.com goes to great lengths to ensure the integrity of its reviews, including having senior care experts read every submission before publication.) 

In order to better understand what consumers were saying about nursing homes online, researchers at the University of Southern California evaluated 264 Yelp reviews and grouped them into categories. The researchers found that consumers rate different aspects of nursing home care than does the official rating system. User reviews were more emotional and more likely to focus on staff attitudes and responsiveness rather than on the quality of health care. 

The researchers concluded that user reviews can be used in conjunction with the Nursing Home Compare site to paint a fuller picture of life at the nursing home because they present complementary information. According to the study, online reviews shouldn’t be dismissed because they “directly capture the voices of residents and family members, precisely the kind of information [nursing homes] and their consumers need to hear and may want to act on, if resident-directed care is to be achieved.” 

Yelp has gone a step further than other consumer review sites and has teamed up with the investigative news organization, ProPublica, to provide users with additional information. ProPublica's Nursing Home Inspect site, allows users to compare nursing homes based on federal data. Yelp users viewing a nursing home review page see a ProPublica box that provides information on the nursing home’s deficiencies and fines.

To read an article about the study, click here.

A Modest Raise for Nursing Home Workers Could Save 15,000 Lives a Year: Study

Raising the minimum wage by as little as 10 percent would significantly improve the safety and health of nursing home residents, according to new research.

Most direct care in nursing homes is provided by nursing assistants, who make up about 40 percent of the nursing home workforce and are among the lowest-paid workers in the U.S. economy. Nursing assistants help residents with activities of daily living like eating, bathing and dressing, and and work with certified nurses and elder care teams to monitor patients’ conditions.

Due in part of their low wages, nursing assistants frequently change jobs for better pay or working conditions.  “Between 60 percent and 85 percent of nursing assistants leave their employers each year, most often to go work in other nursing homes,” writes Krista Ruffini, a visiting scholar at the Minneapolis Federal Reserve. Nursing homes frequently report difficulty in recruiting and retaining staff, she says.

Ruffini recently looked at the impact increasing the minimum wage has on nursing home staff turnover and quality.  She compared facilities in hundreds of U.S. counties that had increased their minimum wage with those that hadn’t between 1990 to 2017.

In findings based on her preliminary data published in a working paper, Ruffini found that “increasing the minimum wage by 10 percent would reduce the number of health inspection violations by 1 percent to 2 percent, the number of residents with moderate to severe pressure ulcers [bed sores] by about 1.7 percent, and the number of deaths by 3 percent.”  The 3 percent reduction in deaths, she notes, translates to 15,000 fewer deaths in nursing homes each year.

Ruffini found that raising the minimum wage reduced turnover and increased tenure among nursing assistants.  This greater continuity of care, she says, translated into improved health and safety conditions for the patients.  At the same time, nursing home profits held steady because the extra costs were passed on in the form of higher fees.

Ruffini notes that her findings have particular relevance in a time when the coronavirus pandemic is overwhelming nursing homes.  Comparing a facility’s number of COVID-19 deaths with its quality-of-care performance, she concluded: “The data provide some suggestive evidence that higher service quality is associated with fewer deaths from COVID-19 in nursing homes.”

For Ruffini’s paper, click here.  For an article she wrote about her findings, click here.

For a New York Times article on Ruffini’s research and another minimum wage study, click here.

The COVID-19 Downturn Triggers Jump in Medicaid Enrollment

Reversing a three-year decline, the number of people covered by Medicaid nationwide rose markedly this spring as the impact of the recession caused by the outbreak of COVID-19 began to take hold.

Yet, the growth in participation in the state-federal health insurance program for low-income people was less than many analysts predicted. One possible factor tempering enrollment: People with concerns about catching the coronavirus avoided seeking care and figured they didn’t need the coverage.

Program sign-ups are widely expected to accelerate through the summer, reflecting the higher number of unemployed. As people lose their jobs, many often are left without workplace coverage or the money to buy insurance on their own.

Medicaid enrollment was 72.3 million in April, up from 71.5 million in March and 71 million in February, according to the latest enrollment figures released last week by the Centers for Medicare & Medicaid Services. The increase in March was the first enrollment uptick since March 2017.

About half of the people enrolled in Medicaid are children.

The increases varied widely around the country. Kentucky had the largest jump at nearly 7% from March to April. In addition, enrollment rose to 1.4 million in April from 1.2 million in February, according to the CMS data. That has continued, and today it’s up to 1.5 million, state officials said in an interview.

Kentucky has an aggressive outreach strategy using email or phone calls to contact thousands of residents who applied for state unemployment insurance, designed to make sure they know about Medicaid. “It’s been very effective, and in the past few weeks we’ve been enrolling 8,000 to 10,000 people a week,” said Eric Friedlander, secretary of the Kentucky Cabinet for Health and Family Services, which oversees Medicaid.

The Bluegrass State has also made enrollment easier by developing a one-page online form instead of having people fill out a 20-page application, he added.

“This is the right thing to do to help people get signed up for health care coverage and it supports the health industry in our state,” Friedlander said. “The health industry would collapse without Medicaid.”

Joan Alker, executive director of the Center for Children and Families at Georgetown University in Washington, D.C., said she expects Medicaid enrollment to keep rising this summer. “Given that there are no signs that the virus is coming under control anytime soon, job losses will become more permanent, and more folks will become eligible for Medicaid over time,” she said.

One reason Medicaid numbers have not grown faster, she suggested, is because people have more immediate needs than securing health coverage, especially if they are feeling well.

Many people are worried about getting unemployment insurance or getting evicted from their home, she noted. “That’s combined with the fact that many people are reluctant to go to their doctor because of safety concerns,” she said. “And, as a consequence, applying for Medicaid may not be at the top of their list.”

Chris Pope, a senior fellow at the Manhattan Institute for Policy Research, a conservative think tank, said the slower-than-expected growth in Medicaid could signal that people who were laid off had coverage through a spouse or a parent.

In addition, he said, “many jobs that went away did not offer health insurance,” citing millions of service-sector positions in industries such as hotels and restaurants that have been lost.

Beyond the surge in unemployment, Medicaid rolls have risen because states cannot discontinue coverage to people enrolled as of March 18, 2020, as a condition of receiving higher federal Medicaid funding included in a coronavirus relief package passed by Congress.

Medicaid is a countercyclical program, meaning enrollment typically rises during an economic downturn. But that forces states to face the fiscal challenge of paying for their share of the program even as tax revenue dries up.

An exception to this rule was the jump in enrollment starting in 2014 when the Affordable Care Act allowed states to expand Medicaid to cover everyone with incomes below 138% of the federal poverty level, or about $17,609 for an individual this year.

Enrollment soared by about 15 million people from 2014 to 2017, peaking at about 75 million as nearly three dozen states expanded the program. Since then, a strong economy and steadily declining unemployment levels led to a drop in Medicaid rolls until April.

Enrollment changes in April varied across the country.

California, which has the highest Medicaid enrollment in the country, saw its level hold relatively steady at 11.6 million people in April.

Nevada and Oklahoma posted nearly 4% enrollment growth rates between March and April’s data.

Florida’s Medicaid numbers jumped to 3.7 million in April from 3.6 million in March, nearly a 2.5% increase, the CMS data showed. Since then, Florida data shows enrollment has topped 4.1 million.

The Trump administration has been criticized by consumer advocates for not establishing a national campaign to promote Medicaid during the economic downturn and health crisis.

One indicator that Medicaid enrollment is still going up is the growing number of recipients in managed care plans in 16 states that reported data from March to May. Those plans have increased by a total of nearly 4%, according to a KFF report. (KHN is an editorially independent program of KFF.) Most states have shifted many of their Medicaid enrollees into these private health plans.

KFF estimated that nearly 13 million people who became uninsured after losing their jobs in March are eligible for Medicaid.

Robin Rudowitz, a KFF vice president, said there is typically a lag time of weeks or months before people who have lost their jobs and health coverage seek to enroll in Medicaid. The impact on Medicaid enrollment also lasts well after the immediate effect of a downturn, she said.

“There is a long tail,” she said.

States May Not Terminate Medicaid Benefits During the Coronavirus Pandemic

Access to affordable medical care is especially important during a global health crisis. You should be aware that federal law prevents states that have accepted increased Medicaid funding from terminating Medicaid benefits while the coronavirus health emergency continues.

The Secretary of Health and Human Services has declared a nationwide public health emergency for COVID-19. In light of the public health emergency, the Families First Coronavirus Response Act provides that if you were enrolled in Medicaid as of March 18, 2020, the state (provided it accepted expanded Medicaid funds during the crisis) cannot terminate your benefits even if there is a change in your circumstances that would normally cause your benefits to be stopped. The law states that your Medicaid coverage must continue through the end of the month in which the Secretary declares that the public emergency has ended. The only exceptions to this non-termination rule are if you choose to terminate your benefits yourself or you move to another state. 

States that already terminated a Medicaid recipient’s benefits should be contacting recipients and encouraging them to reenroll. If the state determined that you were “presumptively eligible” for benefits before March 18, 2020, this rule does not apply to you, and the state may terminate your benefits if it eventually concludes you are not eligible for benefits. However, if you have coverage because you are appealing a decision of ineligibility that was made before March 18, 2020, the state cannot terminate your benefits during the health emergency. 

For an FAQ about the Medicaid requirements under the law, click here.

Medicare and Medicaid Will Cover Coronavirus Testing

With coronavirus dominating news coverage and creating alarm, it is important to know that Medicare and Medicaid will cover tests for the virus. 

The department of Health and Human Services has designated the test for the new strain of coronavirus (officially called COVID-19) an essential health benefit. This designation means that Medicare and Medicaid will cover testing of beneficiaries who are suspected of having the virus. In order to be covered, a doctor or other health care provider must order the test. All tests on or after February 4, 2020 are covered, although your provider will need to wait until after April 1, 2020, to be able to submit a claim to Medicare for the test.

Congress has also passed an $8.3 billion emergency funding bill to help federal agencies respond to the outbreak. The funding will provide federal agencies with money to develop tests and treatment options as well as help local governments deal with outbreaks. 

As always, to prevent the spread of this illness or other illnesses, including the flu, take the following precautions:
•    Wash your hands often with soap and water
•    Cover your mouth and nose when you cough or sneeze
•    Stay home when you're sick
•    See your doctor if you think you're ill

For Medicare’s notice about coverage for the coronavirus, click here.

Caregivers Are Getting Younger, Making Planning for Long-Term Care Even More Important

As baby boomers age, more and more millennials are becoming caregivers. Many are taking on this role while just getting started in their own lives, leading to difficult decisions about priorities. Proper planning can help them navigate this terrain. 

The term “sandwich generation” was coined to refer to baby boomers who were taking care of their parents while also having young children of their own. Now millennials are moving into the sandwich generation at a younger age than their parents did. According to a study by the AARP, one in four family caregivers is part of the millennial generation (generally defined as being born between 1980 and 1996). And a study by Genworth found that the average age of caregivers in 2018 was 47, down from 53 in 2010. Gretchen Alkema, vice president of policy and communications at the SCAN Foundation, told the New York Times that the rise in younger caregivers may be because baby boomers had kids later in life than their predecessors and many are divorced, so they do not have a spouse to provide care. 

Younger caregivers have different challenges than older caregivers. They may have younger kids to manage and careers that are just beginning, rather than established. In addition, more millennial men are caregivers compared to previous generations. The AARP study found that millennials spend an average of 21 hours a week on caregiving, and one in four spend more than 20 hours per week. More than half (53 percent) also hold a full-time job in addition to their caregiving duties and 31 percent work part time. Younger caregivers are also less likely to discuss their caregiving duties with their employer than previous generations.

Managing caregiving duties, family, and employment is stressful. Having plans in place can help alleviate some of the stress, and the earlier you plan ahead the better. The following are resources you can use to put together a long-term care plan: 

• Long-term care insurance can help lessen some of the costs of caregiving if it is purchased early enough. 
• A geriatric care manager can help determine what care is needed and where to find resources. 
• An elder law attorney can draft essential documents like a power of attorney and a health care proxy, as well as advise you on available benefits, such as Medicare, Medicaid, or Veteran’s Administration benefits. 
• Adult day care can give caregivers a much-needed break. 

Having resources in place will help, but you also need to be mindful of when you need help. Recognize when you are being stretched too thin and consider your priorities. If possible, talk to your employer about flexible hours. Consult with other family members and do not be afraid to delegate tasks. Take care of yourself by eating well, exercising, and finding time to relax. For some tips on handling the caregiver/life balance, click here.

For an article on the unique caregiving challenges facing the women of Generation X, click here.

Medicare Launches App to Help Beneficiaries Find Out What's Covered

At the doctor's office and want to know if a procedure is covered by Medicare? There is an app for that. Medicare has launched a free app that gives beneficiaries a quick way to see whether the program covers a specific medical item or service. 

The "What's Covered" app allows you to search or browse to learn what's covered and not covered under Medicare Parts A and B, how and when to get covered benefits, basic cost information and other eligibility details. You can also see a list of covered preventive services. The app does not give results for extra benefits that Medicare Advantage plans may cover but that Original Medicare does not, such as certain vision, hearing or dental benefits. 

Examples of the types of questions the app can answer include:

• When are mammograms covered?
• Is home health care covered?
• Will Medicare pay for diabetes supplies?
• Can I get a regular cervical cancer screening?
• Will my Medicare benefits cover a service to help me stop smoking?

Although the app provides beneficiaries with basic information, it doesn’t provide personalized information. It doesn't ask details about each user's specific insurance information, so it doesn't take into account the user's supplemental insurance, co-insurance, and deductibles. Essentially, the app provides another way for Medicare beneficiaries to get the same information that is available online and in the Medicare handbook.

The app is part of an initiative by the Centers for Medicare and Medicaid Services (CMS) focused on modernizing Medicare and empowering beneficiaries. Other initiatives include:

• Enhanced interactive online decision support to help beneficiaries better understand and evaluate the coverage options and costs of original Medicare compared to Medicare Advantage plans.
• New price transparency tools that let consumers compare the national average costs of certain procedures between settings, so people can see what they’ll pay for procedures done in a hospital outpatient department versus an ambulatory surgical center. 
• A new webchat option in the Medicare Plan Finder.  
• New easy-to-use surveys across Medicare.gov so consumers can tell CMS what they want.

To get the new "What's Covered" app, go here: https://www.medicare.gov/blog/whats-covered-mobile-app.

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。