January 2, 2013
The following article, Bury the Top 10 Myths About the Dying Process, is by Tani Bahti, RN, CT, CHPN, Founder and Executive Director of Passages – Support & Education in End of Life Issues, and Author of “Dying to Know – Straight Talk About Death & Dying.”
The current debate about end of life decision-making in healthcare is avoiding the most important ingredient; understanding the natural process of dying. It is critical that this information be provided compassionately and thoroughly before those facing a potentially terminal illness can make a truly informed decision.
Those of us who work directly with the dying understand that the body has a natural wisdom built into it, to protect itself and promote comfort. Just like a body must go through certain stages to prepare to be born, it must also go through certain stages to shut down and die. It’s knowing what the natural and normal changes are that we do not want to interfere with lest we inadvertently create more discomfort. It’s also knowing how to manage any distressing symptom.
When people don’t understand the wisdom of the body, they will make decisions based on fear, lack of information or misinformation. This can lead to devastating physical, emotional and financial consequences for the patient and family as they seek futile or even harmful end of life care. Knowing and honoring the body’s changes will lead to the best possible choices and care for our loved ones.
As a healthcare professional working directly with those facing a terminal illness, I believe it is our work to excavate and correct the myths and misconceptions that may drive treatment decisions, including understanding their prior experience or knowledge of death.
The following is a list of what I have seen as the most common myths about the dying process.
Dying is painful
Pain is not an expected part of the dying process. In fact, many people experience no pain whatsoever. If your loved one’s particular condition does produce any pain, however, it can be managed by medications prescribed by a properly trained clinician
If people don’t eat they should get a feeding tube or they will starve to death
The needs of the body and its ability to process and utilize food changes in the final months of life. People do not die because they are not eating; they do not eat because they are dying. Complications due to forced feeding and the use of tube feedings can actually hasten dying. One of several reasons why your loved ones will be more comfortable when not eating is that endorphins, the body’s natural pain killers, are released to promote a sense of well-being and comfort.
Not drinking leads to painful dehydration
Natural dehydration is comfortable and causes the release of endorphins which promote comfort. Unlike in a healthy person, providing artificial fluids near the end of life may actually increase discomfort, Natural dehydration results in less chance of nausea and vomiting, swelling, and lung congestion.
If I don’t make use of every possible technology available, or if I tell the doctor to stop using machines to keep my loved ones alive, I am essentially killing them.
It is the disease that kills your loved ones, not you. They wouldn’t be on machines if they weren’t critically ill. When dealing with a progressive or terminal illness, the use of machines may only be prolonging dying rather than prolonging living. Just because we have technology doesn’t mean it’s always the best or most appropriate care.
If they are allowed to stay in bed or sleep as much as they want, they are giving up and will die sooner.
Energy diminishes throughout an illness. To push people beyond their natural limit will not strengthen them and may further deplete what little energy they have left, thus putting increased strain on their already fatigued body.
People should be conscious until the moment of death. If they are increasingly tired or confused, they are being over-medicated.
The dying process almost always causes the person to sleep more and more, until they drift into a coma. Sleepiness and possible confusion are often due to natural chemical and metabolic changes in the body as it begins to shut down, and they occur even when a person is not taking any medications at all. Proper management of medication can keep your loved one pain free while not contributing to confusion or hastening the dying process.
Narcotic pain medications will cause loss of control or even hasten death
Adequate pain medication can actually give your loved ones more life, providing better rest and therefore more energy and comfort to do things. Inadequate pain control can harm the body and even hasten dying due to damage from stress hormones, increased risk of clots, or complications of immobility because one has too much pain to get out of bed. Properly prescribed medications do not hasten death. They keep your loved ones comfortable during the dying process.
It’s too late to say good-bye if they are in a coma
Your loved ones can hear and benefit from touch until their final breath. Now is the time for loving actions such as reminiscing, holding tenderly, stroking their face, telling them what they meant to you, letting them know you will be sad but OK when they die, and saying good-bye.
Dying ends in a final struggle
In the end, most people essentially “die in their sleep” due to a coma that can last from minutes to days, depending on their disease.
If I’m not there when my loved ones die, I failed them.
One of the amazing mysteries of dying is the timing of death itself. Sometimes a loved one will wait for someone to arrive or for everyone to leave the room before they die. Make no judgments about whether you were there at the final moment or not. Their knowledge of your love, not your physical presence, is what is most important.
By understanding and honoring the dying process we promote better decision-making, preparation and comfort on the final leg of our journey.
“A good death does honor to a whole life.”
Tani Bahti’s website is www.pathwayseol.com
January 2, 2013
William M. Gatesman assists clients in Maryland and D.C. in the areas of estate planning, probate and estate administration, elder law and Medicaid planning, asset protection planning, special needs planning, wills, trusts, powers of attorney, and health care decision making documents.
Mr. Gatesman represents clients through the Gatesman Law Office, and in Western Maryland, through Michael G. Day & Associates, P.C.
The purpose of this website is to educate consumers and their advocates regarding legal developments that may affect their lives.
October 27, 2012
The Maryland legislature once again has tinkered with the law governing powers of attorney in Maryland. That law includes Power of Attorney Forms, which if used, or if one’s power of attorney is “in substantially the same form” as one of the form documents, then the law bestows certain rights on the holder of the power of attorney, namely, the right to obtain payment of one’s legal fees from the person or institution who refuses to honor the power of attorney where a legal action is taken to compel acceptance. This right to legal fees differs from the general “American rule” of jurisprudence which holds that each litigant in a legal action must pay his own legal fees.
Unfortunately, the forms in the statute are generally not sufficiently comprehensive and lack certain important provisions. Hence, many lawyers recommend using a hybrid power of attorney which incorporates the statutory form provisions, and which hybrid is designed to be “in substantially the same form” as the form of the document in the statute. That way, clients can have a sufficiently comprehensive power of attorney and retain the right to legal fees under the law while not using the precise form in the statute, which many lawyers have determined to be defective.
Within the past year, Maryland’s legislature, only a short time following the enactment of the original power of attorney legislation, has enacted legislation changing the language of the forms in the power of attorney statute. After the first such revision, a number of lawyers still were using the form documents from the statute before revision. I know this, having reviewed several such documents brought in by clients seeking a review of their estate plans. Generally in those circumstances I contact the lawyer who drafted the power of attorney to advise that the law has changed.
The problem is that, if a lawyer uses the statutory form from a prior version of the statute after the effective date of the statutory revision, then the client may not have a power of attorney to which the right to recover legal fees would apply. While this will not cause the power of attorney itself to be invalid, if the lawyer’s intention is to provide his client with a power of attorney that includes the right to recover legal fees, the use of the out of date form language may defeat that intended purpose.
Now, for the second time within a relatively short time, the legislature has tinkered with the statutory language in the power of attorney form set forth in Maryland’s power of attorney law. Such change deals with a technical issue relating to qualified retirement plan assets and is more in the way of notification to the person executing the power of attorney. Nevertheless, even if the power of attorney form under the prior version of the statute grants the same powers as the new revised version, using the prior form after October 1, 2012, the effective date of the new statutory revision, may be at the cost of losing the right to recover legal fees.
The Gatesman Law Office endeavors to remain on the cutting edge of the law in crafting estate planning solutions for our clients.
October 13, 2012
There are several new laws affecting probate in Maryland that became effective October 1, 2012. This article will address those statutory changes.
New Small Estate Limits
When someone dies owning property, unless such property passes to a beneficiary through a beneficiary designation, joint account designation, Pay on Death account designation, life estate deed, or by some other means, then a probate estate must be opened to administer that property and pass it to the appropriate beneficiaries. Maryland allows for a simplified Small Estate procedure if the assets are below a certain value. Effective October 1, 2012, the threshold for a Small Estate is $100,000 if the spouse is the sole beneficiary, and $50,000 if there are other beneficiaries besides the spouse.
As long as the deceased person’s assets subject to probate (not including any assets that pass outside of probate as discussed above) are equal to or less than the October 1 limits, one may utilize the simplified Small Estate procedure. If, however, the person died before October 1, then a Small Estate may be used only if the value of the assets are $30,000 or less ($50,000 or less if the spouse is the only beneficiary).
Birth by Artificial Insemination
In Maryland, creditors have 6 months from the date of death to make a claim against the deceased person’s assets (6 months from the date a Personal Representative is appointed for any state Medical Assistance claims). It is typical, but not always necessary, to wait for six months before distributing estate property to the beneficiaries of the estate. However, due to a new statutory change, effective October 1, some Personal Representatives (a Personal Representative is the person who administers the estate) may risk personal liability if they distribute property after 6 months but before 2 years following the decedent’s death.
The risk arises out of several statutory changes that allow for the use of a decedent’s genetic material (e.g. medically preserved sperm or eggs) after the death of the donor, and which statutory provisions deem that the individual who is born through the use of such genetic material after the donor’s death, in certain circumstances, be considered the deceased person’s “child” under the law governing probate estates, provided that such child is born within two years of the donor’s death.
For example, if you have a son or daughter who deploys to Afghanistan for military service, and that child of yours preserved his or her genetic material to be used by your child’s spouse to create a baby should your son or daughter be killed, the following possibility might arise. Your son or daughter may predecease you and you may not have been informed about the arrangement your child had with his or her spouse.
You also may have prepared a Will that divides your property among your children, but if one of your children predeceases you, then that child’s share would be distributed to his offspring. If such predeceased child had no offspring, however, then your estate would be divided among your surviving children.
In that event, under the example set forth above, suppose that you die, and your child who deployed overseas had predeceased leaving no living children. Suppose also that you have no living spouse and only one other son, who is the Personal Representative under your will.
The usual practice would be for your Personal Representative to wait out the 6 month creditor’s claims period before distributing the estate to the beneficiaries. In this instance, by all appearances, your Personal Representative ascertains that he is the only beneficiary of your estate because your other child died with no offspring.
Suppose also that your surviving child had lost his job and is in arrears on his mortgage. So, after 6 months following your death, he, as Personal Representative distributes the entire estate to himself as sole beneficiary and uses the funds to bring his mortgage current. By doing so, he has none of the inherited funds left over.
For a death prior to October 1, 2012, this would not have been a problem for your surviving son. Now, however, there is a risk. Suppose, in the example above, that the spouse of your predeceased child decides to use the medically preserved genetic material to become pregnant and give birth. If such event occurred more than six months following your death, your Personal Representative would not have known about the situation when he distributed the estate to himself. But if such birth occurs within two years following your death, then, under your will, and through the application of the new statutory provisions, there now exists a grandchild who is entitled to share in your estate.
Unfortunately, because your surviving son distributed the entire estate to himself (as was proper and prudent under pre-October 1 law), he now stands personally liable to pay the share of your estate that your new grandchild is entitled to receive. In the example above, however, your surviving son used the entire inheritance to bring his mortgage current and has insufficient assets to pay the bequest to the new grandchild. This is a problem.
This new statute injects uncertainty into the process of closing out a probate estate in a timely manner. William M. Gatesman has been working with other Maryland lawyers to urge the state legislature to revise this new law to require that any person who might use such genetic material provide notice to the Personal Representative of an estate within 6 months of the date of death, and in the absence of such notice, any child born from such genetic material after such 6 month period would not be an eligible beneficiary of the estate.
It is likely that such revision of the law will be made within the coming year. In the meantime, however, estate planning lawyers must consider whether to add a clause to the Wills they draft for clients specifically excluding those persons born of a deceased person’s genetic material more than 6 months after death as beneficiaries in the estate. And probate lawyers must exercise caution when advising Personal Representatives about making distributions to beneficiaries within the two years following the decedent’s death.
William M. Gatesman stands ready to assist clients as they attempt to navigate the potential minefield imposed by the new genetic materials law.
June 11, 2012
I have added a new page to this web site which tells the story of Alzheimer’s disease. It discusses who discovered it, what resources are devoted to the care of Alzheimer’s sufferers, the cost to society, the drugs used to prevent it, and other facts and information. You may access the page by clicking the words Alzheimer’s Disease at the top of this web page.
May 24, 2012
Father, who had been enjoying late middle age, had a brain aneurysm and now is in a permanent coma. Unfortunately, he did not have a power of attorney or advance directive, so his adult son could not access his bank account, in which he had $20,000. He has no other assets. Father’s hospital and nursing home bills now exceed $300,000.
Son applied for Medicaid for his father but was denied benefits because Medicaid will not be allowed if Father has more than $2,500. Unfortunately, without a power of attorney, no one has the authority to spend the funds in Father’s bank account so that he can get Medicaid benefits.
I filed a guardianship petition in which Son is seeking to be appointed guardian of the person and property of Father. At the court hearing, I requested that the Court make a finding of fact that no one had access to Father’s bank account, and make a legal ruling that, as a consequence the funds in such bank account were not an available resource for Medicaid eligibility purposes.
I asked the court to take judicial notice of a particular provision in the Medicaid rules, that is, asked the court to consider the rule without having to put on a formal proof process to show that the rule exists. The Judge accepted my request, however, the Judge asked me why that was necessary.
The Judge reasoned that once Son is appointed guardian, he could get access to the funds in Father’s bank account, prepay Father’s funeral and pay the balance of the funds to the nursing home. After making such payments, son could reapply for Medicaid, and Medicaid would be approved because Father then would have less than $2,500.
I agreed with the Judge’s analysis; however, I pointed out to her that such reasoning only addresses half of the problem — that is, Medicaid eligibility for future months. The reason I wanted a ruling from the Judge that the $20,000 was an unavailable resource (pointing out that there was language in the Medicaid regulations to support such treatment) is that the previously filed Medicaid application had been denied and such denial was based upon a determination that the $20,000 was an available resource. That denial of Medicaid benefits meant that Medicaid was not willing to pay the outstanding $300,000 medical bill.
Therefore, if the judge did not make the ruling I had requested, then Father would be left with $300,000 in unpaid medical expenses. Upon hearing that, the judge again reviewed the Medicaid rules I had presented to her, and after a few minutes stated that she saw the merit to my argument.
In the end, Son was appointed guardian for his Father, and the Court ruled that the $20,000 had been an unavailable, and hence exempt resource for Medicaid purposes, thereby paving the way for Son to appeal the denial of Medicaid benefits. Better yet, with that court order in hand, I instructed Son to request that the Medicaid caseworker rescind her denial of benefits thereby making a Medicaid appeal unnecessary. On the strength of that court order, Medicaid benefits have been granted to pay the entire $300,000 outstanding balance as well as Father’s future medical costs.
As this case shows, just having the Son appointed guardian for Father would not have gone far enough in resolving this family’s difficulties.
William M. Gatesman is well versed in tax law, estate planning, guardianship law, Medicaid law, fiduciary law, and numerous other related areas. He was able to bring this broad level of experience to bear to bring about a positive outcome in today’s guardianship case, the story of which is related above.
March 2, 2012
With the due date approaching for the filing of an income tax return, some may wonder if the costs paid to an assisted living facility are deductible.
In order to deduct assisted living costs for income tax purposes, an individual needs to obtain a written statement from her doctor which states that:
1. The client is a chronically ill individual
2. The client is unable to perform without assistance at least two of the following activities of daily living: eating, toileting, transferring, bathing, dressing, and continence, OR she requires substantial supervision to be protected from threats to health and safety due to severe cognitive impairment, and
3. The client’s care requirements include maintenance and personal care services, i.e. care which has as its primary purpose the providing of a chronically ill individual with needed assistance with her disabilities, and
4. That the physician prescribes that such care be provided by her current assisted living facility or a similar facility
Also, before filing the tax return, the tax return preparer will need (in addition to the total costs at the assisted living center) a breakout (normally done as a percentage and provided by the assisted living center) of what percent of the total cost is for “assisted living care” verses food or lodging.
See IRS Publication 502
March 1, 2012
Medicaid law allows a parent to gift any amount of assets to a disabled son or daughter and still get Medicaid to cover the parent’s long term care in a nursing home. If the child who receives the gift is not disabled as determined by the Social Security Administration, however, then any such gift, if made within five years preceding the date of the Medicaid application, will cause Medicaid ineligibility for the parent who made such gift.
The Medicaid rules state that both outright gifts to a disabled child, and gifts to a trust for the sole benefit of a disabled child are exempt transfers — that is, transfers that do not cause Medicaid ineligibility for the parent who makes the gift.
In order to ensure that a gift in trust is for the sole benefit of the disabled child (including a disabled adult child), Maryland requires that such trust allow for distributions to or for the benefit of such child, and no other person, during such child’s lifetime, and requires further that the State of Maryland be named as a beneficiary of the trust after the child’s death to repay the State for any Medicaid benefits the State has provided to such child during his or her lifetime.
This sole benefit requirement applies only to gifts in trust. Unfortunately, the Maryland Medical Assistance Program manual, which is the guidebook used by Medicaid caseworkers to evaluate Medicaid applications, is written in such a way as to suggest that the sole benefit requirement also applies to outright gifts. The official Medicaid regulations, on the other hand, do not support this position.
William M. Gatesman was involved recently in a matter in which a parent who had given funds to his disabled adult child was denied Medicaid eligibility for nursing home care. The Medicaid caseworker concluded that such outright gifts could not be exempt transfers because there was no way the child who received the funds could ensure that they would be used only for his benefit. The caseworker insisted that only funds that were held in a trust that provided for payback to the State to cover any Medicaid benefits the child might receive would be allowed. All other gifts to such disabled child, including the cash transfers, were treated as gifts causing Medicaid ineligibility.
All efforts to educate the caseworker were ineffectual, and we filed an appeal. While the appeal was pending, we initiated discussions with the Medicaid policy makers at the State level. Fortunately, on the eve of the hearing date, the policy makers responded by agreeing that outright gifts are not subject to the sole benefit requirement applicable to transfers in trust. Based upon that determination, we got the local Medicaid caseworker to reverse her adverse determination an hour before the appeal hearing was scheduled to start.
Sometimes, when the State misapplies the Medicaid rules, knowing which government official to talk to helps pave the way to a satisfactory resolution of the problem.
February 18, 2012
Several months ago, I shared with you Carol Allen’s Reflections of a Non-Expert Care Giver in which Carol discussed how the experience of caring for her mother, who suffered from dementia, enabled Carol to shift her attention from the outer expression of life to its inner reality. For Carol, this was a positive, life affirming experience.
For others, such experience is a struggle of monumental proportions. Such is the case for Sandra Tsing Loh who relates her experiences managing her aging father’s care in the article/book review entitled Daddy Issues in the March, 2012, issue of the Atlantic magazine.
Loh writes: “I rant to myself: He is taking everything! He is taking all the money. He’s taken years of my life (sitting in doctor’s offices, in pharmacies, in waiting rooms). With his horrid, selfish, grotesque behavior, he’s chewed through every shred of my sentimental affection for him. He’s taken the serenity I fought for — and won — in 1,000 hours of therapy centered on my family. In fact, he’s destroyed my belief in “family” as a thing that buoys one up. . . . In short, on top of everything else he has taken from me, he has taken away my entire sense of self, because at age almost-50, it appears that I too have become a squalling baby!!!”
Despite this rant, Loh’s experience, like Carol Allen’s, appears to have enabled Loh to learn something about herself. Quoting the late singer Amy Winehouse, Loh concludes her article thus: “I can no longer think of my dad as my ‘father.’ But I recognize in him something as familiar to me as my self. To the end, stubborn, babyish, life-loving, he doesn’t want to go the rehab, no, no, no.”
You may click here to see Sandra Tsing Loh’s article in a new browser tab.
February 10, 2012
Mr. GoodSon is in a bind. His mother has been in a nursing home for over a year. He applied for Medicaid when mother first entered the facility, and although the Medicaid caseworker indicated to him that the application was fine, she ultimately denied the Medicaid application because mother had a few hundred dollars too much in her bank account. So GoodSon reapplied for Medicaid. This time, he could not get all the bank statements requested by the Medicaid caseworker from the bank. GoodSon again got the message not to worry about it, but in the end the Medicaid application was denied for failure to submit all the requested information
You’ve heard the old adage, “the third time is a charm”. So it was in this case, too. However, while the third Medicaid application was successful and Medicaid was granted, it was granted with a 6 month penalty period, or period of Medicaid ineligibility as a consequence of mother having made gifts to family members in the years prior to entering the nursing home.
By the time Medicaid started to pay, there was well over $100,000 in outstanding charges at the nursing home, and mother had no money to pay it. Mr. GoodSon is retired with only his house and barely adequate retirement savings. Nevertheless, the nursing home sued both mother and Mr. GoodSon. However, it is GoodSon who is at risk of losing everything — mother already is destitute.
To make matters worse, Mr. GoodSon did not seek my assistance until a few days before the court was to enter summary judgment — in other words, the nursing home was about to get a judgment against mother and Mr. GoodSon for the outstanding debt because Mr. GoodSon had been pursuing his legal defense without a lawyer.
We quickly ascertained that GoodSon had a number of defenses to the lawsuit, and we were able to defeat summary judgment notwithstanding the short time I had to do so. We next educated the lawyer for the nursing home about the reasons his client could not collect the entire outstanding balance from Mr. GoodSon. Indeed, Medicaid and nursing home collection law is highly complex. Having done so, we were able to persuade the nursing home to settle the matter for a fraction of the outstanding balance.
Fortunately for Mr. GoodSon, he sought out competent legal assistance not a moment too soon. Had he not done so, he could have suffered financial devastation.
While Mr. GoodSon and his mother are an extreme case, many people find themselves paying tens of thousands of dollars more than they have to by attempting to navigate the complex matter of paying for nursing home care without proper guidance.
Don’t let yourself fall into the trap that caught Mr. GoodSon — seek out competent counsel as soon as possible if you or a loved one will require nursing home care.
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