Hillary Clinton announces plan to fight Alzheimer's

In December, Hillary Clinton became the first presidential candidate to make fighting Alzheimer's Disease a campaign issue. On December 22nd, she announced a plan to invest $2 billion per year until 2025 toward a cure to Alzheimer's. Clinton stated that 10 years was the minimum amount of time prominent researchers predict it will take to make significant progress. 

Alzheimer’s research received $588 million from federal funding in 2014, which according to Clinton is less than 1% of the yearly cost of the disease. While 2016's budget allocated an additional $350 million more toward the disease, Hillary argues this is not enough. To raise funds, she says she will close tax loopholes, although she does not say which ones. Hillary and Bill have personally taken full advantage of Estate Tax loopholes, so it will be interesting to see if she gets rid of those.

While the cost of research may seem high, Clinton hopes to offset the growing cost of caring for individuals with Alzheimer's or other kinds of dementia - much of which is borne by medicare. Treatments for Alzheimer's would also benefit family members and caregivers, who often find themselves completely unprepared to deal with the emotional and financial burden of caring for someone with severe dementia

According to The Alzheimer's Association, studies estimate that nearly 15 million people aged 65 and older will have Alzheimer's disease by 2050. Clinton notes that each of those individuals would need the support of caregivers and family. Clinton stated:

"We owe it to the millions of families who stay up at night worrying about their loved ones afflicted by this terrible disease and facing the hard reality of the long goodbye to make research investments that will prevent, effectively treat and make a cure possible by 2025," Clinton said. "The best scientific minds tell us we have a real chance to make groundbreaking progress on curing the disease and relieving the pain so many families feel every day."

Clinton had previously come out as an advocate for comprehensive Alzheimer's care planning services. When one receives a diagnosis of Alzheimer's or other form of dementia, the importance of planning cannot be overstated. There are two parts to care planning: the medical side and the financial side. In most cases, the two overlap. Clinton says she will focus on ensuring comprehensive care-planning sessions are covered by Medicare, along with promoting coordinated care among physicians. The financial part is something you'll want to discuss with an Elder Law attorney, as Medicare and Medi-Cal will often pay for long term care. The process of qualifying for Medi Cal is extremely complex however, and should be facilitated by an experienced California attorney who specializes in Medi Cal for long term care.

Clinton also wants to reauthorize the Missing Alzheimer's Disease Patient Alert Program, which helps locate patients who may be prone to wandering. Needless to say, those Alzheimer's patients who are prone to wander may be in need of a more comprehensive care facility, which can often be paid for by Medi-Cal. National statistics state that 6/10 sufferers will wander at some point in a state of disorientation. The risks posed by wandering are life threatening, and this is perhaps the most critical reason that care for individuals with dementia must be planned for in advance. 

Clinton also wants to increase awareness among seniors about Medicare (Medi Cal) benefits available to them. In my personal practice, I help families rearrange assets to qualify for Medi Cal, as well as advise them on how to avoid the state from seizing their assets when the individual on Medi Cal passes away. This is an excellent example of a benefit offered to Californians that is little known about. 

While I can't personally speak to the realities of finding a cure for dementia by 2025, I appreciate Clinton's efforts to bring more attention to a disease that continues to devastate the lives of so many who do not have the resources and tools to cope with it. 

If you have questions about Medi-Cal or other Elder law issues, contact my law office in Walnut Creek for your free consultation. 925-322-1763


How to Resolve a Conflict between a Healthcare Directive and a Power of Attorney

Does California Probate code make any allowances for differences or conflicts between an Advanced Healthcare Directive (California's version of a Healthcare POA) and Power of Attorney?

For example, a parent designates one child as their agent for the Healthcare Directive, and the other child as their agent for the Power of Attorney. The parent becomes incapacitated, and both children must step up to manage both the healthcare and finances of their parent. The child in charge of healthcare must place the elderly parent in a long term care facility, and needs funds from their parent's estate to do so. However, the child with the Financial Power of Attorney refuses to release any funds for a long term care facility.

Let's add a layer of complication that many children of parents with dementia in the SF East Bay must face. This is the question of Medi-Cal and long term care. In our example, above, the child with the financial power of attorney is refusing to release funds for care because they are aware that there are rules and regulations regarding qualifying for Medi-Cal's long term care coverage that may be violated if they begin paying for care prior to applying for Medi-Cal. The child with the Healthcare Directive suspects they may be correct, but is too confused by the Medi-Cal system, and does not want to spend money to consult an attorney. The siblings, already under immense stress because of their parent's failing health, find themselves at an impasse. What are their options?

When a Financial Power of Attorney and Medical Power of Attorney (or Advance Healthcare Directive in CA) have different agents who cannot agree, or have stipulations that conflict with each other, there are several ways the situation can be resolved. The first is perhaps the most simple, but I have seen it overlooked in my years as an Elder Law attorney in Contra Costa County.

1. Read the Documents with a Fine Tooth Comb: Does one or both of the documents contain a clause or section that accounts for the difference or conflict in question. If the documents were drafted by an experienced Estate Planning Attorney in the SF East Bay, there should not be any conflicts that are not resolved between the Power of Attorney and Healthcare Directive. 

2. Try to work it out: When emotions and stress levels are high, conflicts arise. Much conflict is born out of misunderstandings and lack of communication. Try to sit down in a neutral or public environment and talk it out. Bring a list of concerns, and try not to leave the conversation without a plan for the next step in place. 

2.  Consult an Elder Law Attorney: An elder law attorney who works in the county where the parent resides is best equipped to help you with your case. For example, I work with Elder Law clients in Contra Costa County and Alameda County. As an Elder Law attorney centered in Walnut Creek, I understand the procedures of both these courts and am well positioned to resolve issues quickly with minimal cost. If there is a Medi-Cal issue, as in the example above, look for an Elder Law attorney who specializes in both Probate Litigation and Medi-Cal matters.

3. Consider Mediation An Elder Law attorney can represent you in mediating the matter and coming to a swift resolution. While this can be costly, a good attorney can recommend a skilled mediator who can help you resolve the situation and avoid the much higher costs of going to court. 

4. Choose Probate Court Last Having a judge resolve your issue for you is often the worst situation you can find yourself in. In most elder law cases I deal with in the SF East Bay, there is often not one obviously wrong party (legally speaking). The cost of resolving your Power of Attorney and Health Care Directive issue in the Probate Court of Contra Costa or Alameda County is guaranteed to be expensive and exhausting. Often, the end result is either worse or the same for both parties as mediation, at 3-4 times the cost. A responsible and ethical Elder Law attorney will almost always recommend mediation.

I offer a free consultation from Elder Law and Trust and Estate Law Firm in downtown Walnut Creek. For questions about a Power of Attorney or Healthcare Directive, or other probate issues, call 925-322-1763


Legal Planning for Alzheimer's or Dementia

Having a parent, grandparent, or close friend that is diagnosed with Alzheimer’s or dementia can seem overwhelming. However, if you begin planning for their future early, many of the difficulties associated with the disease can be avoided. In addition, the sooner planning begins, the more the person affected can participate.

The Importance of Legal Planning

Early legal and financial planning for your loved one helps to keep costs (and stress) at a minimum going forward. It also allows the person with dementia to express their own wishes for future care, as well as be involved in choosing decision makers on their behalf. Legal and financial issues for long-term care can also be addressed. An experienced Elder Law attorney can also help the person with dementia qualify for MediCal, which can save thousands and thousands of dollars in long term care costs. In the Elder Law field, this is known as MediCal planning.

Legal Issues to Address:

  • Planning for Long-term care and health care
  • Planning for finances and property
  • Designating someone to make decisions for the person with dementia

Before speaking with an Elder Law attorney, determine if the person with dementia has the legal capacity to sign documents. If there is any question as to whether or not they can, consult with a medical doctor. A doctor can help determine their capacity, and provide written proof of their mental capacity. Many elder law attorneys will require such a document before having them sign anything.

In addition, locate any living wills, powers of attorney, or trust documents that were signed prior to the diagnosis. If you cannot find a record of these documents, or none were completed, consult with your attorney on the next steps. It is possible that an estate plan can be made, but in some cases a Conservatorship may be necessary first.

What to discuss in your first Appointment:

  • Who will make health care decisions for the person with dementia?
  • Who will manage the property and finances of the person with dementia?
  • Who will manage their personal care?
  • How will long-term care be paid for? Can MediCal, Veteran’s benefits, or long-term care  insurance policies help?

What to Bring to your Elder Law Attorney:

  • Life insurance policies
  • Real Estate deed copies
  • Recent Income Tax copies
  • Estate Planning Documents (trusts, wills, power of attorney)
  • Health Care Facility documents (retirement home, nursing home, if applicable)
  • Health Insurance Policy Information
  • List of itemized assets
  • Names and addresses of family, caregivers, and professionals involved (for example, beneficiaries if there is a will or trust)

3 Tips for Success:

1. Ensure that your loved one’s doctors and caregivers have a    copy of their power of attorney

2. Have your loved one name a successor agent on the      power of attorney

3. Consider hiring a neutral third party to act as power of    attorney, trustee, or executor.

Most Elder Law attorneys will offer a free consultation to answer any questions you might have. It is important to hire an attorney who works in the county your loved one resides in. I frequently work with families on Conservatorship and Trust matters in Contra Costa County and Alameda County. To set up your initial consultation, call 925-322-1763. I'll be happy to speak with you.


The Dangers of Probate: Embezzlement

This story is an example of what can happen in a worst case scenario probate. Probate is a court process by which an estate (funds and real property) is distributed when a person dies. Probate only occurs if an estate plan has not been set up. Under California law, this means a person's assets exceed $150,000 and their assets are not in a trust. Even if someone has a will, a probate still takes place.  Such was the case with Miriam Strong, long time Connecticut resident, who died in 2010 at the age of 85 with an estate estimated between 3 and 4 million dollars. This May, nearly 5 years later, prominent real estate attorney Peter Michael Clark, was arrested and charged with embezzling $1.8 million of that money. 

Clark was Ms. Strong's lawyer, and assisted her in drawing up her will, in which he appointed himself as co-executor of her estate. Why Mr. Clark did not have Ms. Strong put her assets in a trust to protect them is unclear. This misstep alone would guarantee Mr. Clark received at least $60,000 in legal fees when she died, because the estate would have to go through probate. This could have been avoided with an Estate Plan. 

In California, if someone dies without an estate plan, and there is no obvious choice for an executor (such as an heir), an attorney can be appointed as the executor of an estate. The executor, often with the help of an experienced probate lawyer, is responsible for distributing the assets of the estate and accounting to the court. In this case, the executor and the attorney were one and the same - and the unthinkable happened - the money "disappeared". The $1.8 million dollars was earmarked to go to the town of Oxford, CT for student scholarships and a new library, and Ms. Strong's church, which was desperately in need of repairs to its boiler room. The shocking part is that it took nearly five years for this embezzlement to surface. According to the affidavit, the Probate court scheduled a hearing to determine what had happened to the money after beneficiaries reported not receiving the funds. The FBI began an investigation, and Mr. Clark was arrested several months later. 

Despite the jokes made about attorneys, most attorneys I know in Contra Costa and Alameda County hold themselves to a very high ethical standard. And by law, an executor of an estate or trustee of a trust has a "fiduciary duty" to the beneficiaries of an estate. This means that they will act in the highest interest of the beneficiaries, and uphold themselves to the highest ethical duty of loyalty to those beneficiaries. According to an FBI report, Peter Michael Clark had filed "false and misleading documents" to the probate court, indicating that the money had gone to beneficiaries when instead it went to himself. It seems that greed overcame Mr. Clark and he became blind and deaf to his responsibilities. In a similar case involving embezzlement by tax collector Karen Guillet, when questioned by the judge if substance abuse led to her severe misjudgment, she replied "no," it was simply greed.

One interesting point to note is that typically, an executor or trustee is bonded until the will or trust is administered in full. A bond, in short, is an insurance policy.  While the bond can be waived by the beneficiaries or the court, this is not what I recommend as a Probate and Trust attorney. A bond, in short, is an insurance policy. If Mr. Clark had been bonded, the bond company would "insure" him for the full value of the estate, and should anything happen with the money, they would pay the beneficiaries what they were entitled. This means the town of Oxford and Ms. Strong's church would get their money, and no longer have to worry. The bond company, in turn, would sue Mr. Clark to recover the funds. It is unclear if this is what occurred in this particular probate case. It does appear Mr. Clark was sentenced to 4 years in prison, however, which seems low given his crime.

This is a particularly stark example of what can go wrong if one fails to do an estate plan. An estate plan does not guarantee that no foul play will occur, but it certainly lessens the chances. For more information about drawing up your estate plan, or assistance with your trust or estate, I offer a free 30 minute consultation at my estate planning and elder law office in Walnut Creek.