Archives for elder law

Estate Planning Is More Than Writing a Will

“Elder Law” is a comprehensive area of legal practice that includes not just “estate planning” (legal documents that protect you and your family in event of “worst case scenario”) but also any legal action that is needed to plan, protect, or care for a vulnerable adult.   Elder law is one area in which an ounce of prevention is better than a pound of cure.   Everyone needs this sort of planning, sooner or later.

It’s a fact that any one of us could have an accident at any time, at any age.  (For example, if you were to be in a car crash, who would open your mail or pay your bills?)  If you haven’t drafted legal documents that govern what would happen then, (1) it would be too late to fix it yourself and (2) court action could be required to fill the gap.  This is why every person over the age of eighteen should at least have an attorney review their needs and, ideally, draft the appropriate planning documents.

Some examples of the types of documents elder law attorneys can assist with are:

  • Powers of Attorney (general and specific, durable and non-durable)
  • Health Care Powers of Attorney
  • Living Wills
  • Special Needs Trusts
  • Adult Guardianship cases
  • Adult Conservatorship cases
  • Advocacy for Care Issues
  • Referral and Resources for Care
  • Wills
  • Probate Administration

ESTATE PLANNING:  There is more to “estate planning” than filling in a will form off the internet!   Good estate planning demands a comprehensive approach to both strategy and implementation.  Think of it this way:  Anybody can give someone a ball and have them run around a football field, but it takes a bit more than that to score a goal.  In my practice, each client’s unique needs, goals, circumstances are discussed, and the entire plan is designed so that all the moving parts work together.  My goal is for each person to have a custom tailored, comprehensive plan not only for their estate, but for any time of disability or health crisis.   I want my clients to score the goal of having a plan that works well (strategy) and does what they want it to do (gets the ball over the goal line) at their time of need.

ADULT GUARDIANSHIP:  But sometimes, for one reason or another, advance planning for smooth transitions isn’t possible.  A young person is in a car wreck.  An elderly person develops dementia.  A child with mental disability is reaching the age of emancipation.  In these cases, an adult guardianship may be needed.  “What is an adult guardianship?” you might ask.   If an adult cannot take care of themselves or their finances, it is often (not always) necessary for a family member or other concerned party to petition the Probate Court to establish an adult guardianship or conservatorship.  If a probate court determines that a person is incapacitated and in need of protection, the court may appoint a responsible person to manage their care or finances.  In South Carolina, a person appointed to manage care for a person is called a Guardian.  A person who is appointed to manage finances for a person is called a Conservator.   Sometimes only one or the other is needed, sometimes both are.  Although the two roles (care and finances) are usually managed by the same person, they are separate roles and actually require two, separate court actions.

The decision to seek an adult guardianship or conservatorship is not one to be taken lightly.  The petitioner seeking to be appointed guardian or conservator must prove not only that a guardianship or conservatorship is needed for protection of the vulnerable adult, but also that the petitioner is the appropriate person to be appointed.   A finding of incapacity limits the choices and decisions the vulnerable individual is able to make.  After a person is appointed as guardian or conservator is appointed, the guardian or conservator will be held accountable by the court.  Periodic reports and accountings will be required.   Additionally, the process involves numerous professionals such as physicians, attorneys, and social workers.   Services of an attorney are generally required.

SPECIAL NEEDS TRUSTS:   Individuals who have severe disabilities often face sizeable expenses, and often these expenses are covered in whole or in part by public benefits.  Yet, any funds independently received might cause the individual to be disqualified from public benefits.  This is not only expensive, it can also cause significant disruption of the person’s continuity of care.  Special Needs Trusts are a way to enable the person to receive the benefit of funds without becoming disqualified from public benefits.

PROBATE ADMINISTRATION:  It goes without saying that assisting fiduciaries with administration of probate estates, trusts, and reports required of representative payees is part of the work of an Elder Law Attorney.

If you or a loved one has needs in the area of Elder Law or advance planning for any kind of disability, I invite you to contact me to discuss the issues further.  My goal is to provide cost effective, compassionate, and competent representation for individuals and families in need of elder law services, or appropriate referrals in cases outside my areas of experience.  (In the contact form below, please supply general information only, not any confidential information.)

Location, Location, Location: It’s Not Just For Real Estate!

A safe deposit box may not be the best place for important papers

A safe deposit box may not be the best place for important papers

Chances are, when you hear the words, “Location, Location, Location,” you think of real estate.   These are not the only professionals interested in location, however!  Your Elder Law and Estate Planning Attorney will tell you that the location of your important papers can make the difference between a care plan that is followed, and a care plan that is not followed.  If your loved ones don’t know where to find your health care power of attorney, living will, or estate planning documents, they won’t be able to use them in time of need.

Location, is not the end of the subject, however.  It doesn’t do any good to tell someone where to find your estate plan if no one will be able to easily access it. For example, if you put your plan in a safety deposit box, the bank is not going to let just anyone access it after you pass away. Even if a family member goes to the bank with the key, unless the bank has prior authorization to allow that person to access your box after you pass away the bank will turn him or her away. A court order will be needed to access the box.

To request a free copy of my checklist of 25 documents every person should keep in a safe place, or to schedule a consultation to learn more about estate planning or elder law needs, fill out the form below:

Medicare Payment for Rehab After Hospital Stays

I want my clients who are eligible for Medicare (and their families) to understand that whenever they go to a hospital, it is important to know and to clarify their billing status.  Hospitals are increasingly categorizing stays as for “observation” or “outpatient” even if the patient is in the hospital for several days.  This is because hospitals have a large financial incentive to classify an individual as outpatient.  (An outpatient stay is covered under Part B of Medicare.  An inpatient stay is covered under Part A of Medicare.)

The rub for you is that, under the Medicare statute, an individual must have an inpatient stay in the hospital of at least three consecutive days, not counting the day of discharge, in order to meet Medicare criteria for coverage of post-acute care in a skilled nursing facility (SNF).   A simpler way of saying this is that Medicare will only pay for “rehab” if the patient is being discharged from in-patient care.    The bottom line for my clients is that, if you or your loved one is not “admitted” to the hospital in the first place, Medicare will not pay for “rehab.”  It’s important to clarify this with the hospital!

 HERE is a page with self-help resources if you find yourself being impacted by this issue personally.   Additionally, the National Academy of Elder Law Attorneys (NAELA) is requesting your help in lobbying to eliminate this loophole that is being used to deprive patients of reimbursement for legitimate and cost saving health care measures.    HERE is a link to a page on the web site of NAELA where you can learn more and sign on to support legislation designed to fight this technicality.

If you find yourself needing my assistance with an issue related to Medicare, feel free to contact me using the contact form below.

A LAW PRACTICE DEVOTED TO MORE PEACEABLE AND WHOLESOME PERSONAL AND FAMILY LEGAL TRANSITIONS

Welcome to the family and elder law and mediation practice of Alexandria Skinner, J.D. (located at 3924 Forest Drive, Columbia, SC).

This is a boutique practice devoted to “helping people tackle problems instead of each other.”™  xan dec 2014

This is a practice only for people who want to be fair to themselves and to each other in planning for or implementing personal and family transitions.  Whether parties need help finding what is fair or whether they want to implement an agreement they already think is fair, most clients coming to this practice are seeking help with:

It is said that if the only tool in your tool kit is a hammer, then the whole world looks like a nail.  Often, when parties are in conflict consult with an attorney, that attorney’s first response is to suggest the filing of legal papers.  Certainly, filing of cases in court (also called “litigation”) is an important and valuable tool for addressing conflict.  However, litigation is not the only tool utilized in this practice.   There are many tools available for resolution of conflict, some of which may be objectively better than a lawsuit, in a given case.  Parties are wise to consider all of the tools in the toolbox  before deciding which approach to use.

Sometimes parties file papers only to find that this action compounded their troubles (and cost) instead of making their situation better.  Each individual case is unique and deserves an approach tailored to the needs of the parties, not just a one-size-fits-all, knee-jerk response. The first step is always a consultation to discuss your needs, goals, and unique circumstances.  If your needs are straightforward, that’s great. If they are not, more sophisticated or less obvious options will be explored.

In this integrative style practice, options explored may include conflict coaching, negotiation, multiple forms of mediation (mediation is a term that refers to many different forms of conflict resolution and in this practice includes transformative, narrative, facilitative, and evaluative styles of mediation),  preventive legal planning, and also including lawsuits in appropriate cases.  Subject matter experts may be consulted, on a case by case basis, to ensure that all client needs have been considered and that negative consequences can be avoided to the extent possible.  The goal in every case is to utilize the entire toolbox in such a way as to meet the unique goals, needs, and values of the parties themselves.  An equally important goal is for remedies to be long term, sustainable, and cost effective.

Not every law or mediation practice is the right fit for every client.  To see if this is the right practice for you, please request either a telephone, internet, or office consultation, using the contact form below, or call 803-414-0185 to speak with someone.

TYPES OF LAW

 

FAMILY  LAW :

  • legal representation to obtain uncontested court orders in cases which have been mediated by other mediators
  • uncontested adoptions,
  • name changes
  • uncontested guardianships for children,
  • negotiation and drafting of prenuptial agreements (also known as antenputial agreements),
  • collaborative divorce,
  • contractual legal arrangements between long term partners and never-married parents (including LGBT couples)

 

ELDER LAW:

  • estate planning for middle class families,
  • care planning for elders,
  • planning for disability,
  • estate planning for blended families,
  • legal help for families facing elder care emergencies,
  • adult guardianships and legal actions to protect vulnerable adults or people with disabilities,
  • durable powers of attorney,
  • health care powers of attorney,
  • advance directives and medical ethics consultations,
  • representation in probate court,
  • guidance for guardians and conservators for vulnerable adults regarding compliance with fiduciary duties

 

WHAT IS UNIQUE ABOUT THIS PRACTICE?  

Small and Personal: My clients receive personal attention from me and from my staff.  You will never receive a bill for a postage stamp.

Integrative: My philosophy is to seek a solution that is going to meet all needs in a wholesome way, to the extent possible.  As an IACP certified collaborative professional, I fully support incorporating the wisdom of other, subject matter experts (as warranted) to come up with solutions designed to address the needs and goals of my clients in a “big picture” way of thinking.

Forward Looking: My philosophy is to seek solutions that are going to work in the long term and be healthy and happy for both the individual and the family.  Documents I draft are prepared with the goal of avoiding issues that can give rise to family conflict later.  My clients rely on me for professional guidance and advice, not merely advocacy for a position.

Nonadversarial wherever possible:  My philosophy is that families ought not have to engage in an adversarial process to settle family matters.  On the other hand, peacemaking does not mean to cave in either.  Conflict needs to be resolved fairly and, where possible, in ways that don’t rip the family apart at the seams.  I seek to empower clients, individually and as a team, to identify and implement solutions that reflect their unique and individual values and circumstances and which address the underlying causes or symptoms of the conflict.   In my practice, resources are channeled into finding solutions rather than fueling conflict.

Interest based:  I first help clients identify the underlying issues that are causing distress or which may give rise to problems in the future.  Then, I help clients identify wholesome, realistic solutions to those issues.  When parties work as a team to address or neutralize causes of conflict, rather than as adversaries seeking to gain advantage over one another, it is more likely that they will be able to find creative solutions which meet more of their underlying needs and interests.

Workable:  Ideally, people will be happier with their negotiated or mediated settlement than they would be with a solution imposed by a court after a grueling, adversarial battle.  Because of the emphasis on finding solutions rather than building walls, this approach also conserves family and elder resources, and family relationships can be strengthened rather than torn apart by litigation.  To ensure integrity of long term result, part of the process will include asking whether the negotiated solution is workable in the long run, not just whether it satisfies the immediate need.

Empowering:  The approach of a peacemaking lawyer also is  backwards from that of a litigating attorney.  In a typical divorce case, the very first thing the attorney does is to file legal papers asking a judge to make a decision in the case.  After this, settlement negotiations ensue.  My approach is the opposite.  My clients reach their settlement agreement before they ever file papers.  When papers are filed after agreement has already been reached, the case is uncontested and the judge is simply asked to review and approve the settlement.

Ethical:  I am also very clear about my role and my ethical obligations.  A mediator is neutral and does not represent either party.  An attorney is an advocate and cannot be neutral.  A mediator who says they can represent one party, or an attorney who says they can mediate, are both violating ethical standards of their professions.  I will wear one hat or the other, but not both.  This is discussed in initial conversations.   If I am working as an attorney in a case which needs a mediator, or vice versa, I will help arrange appropriate assistance from appropriate professionals.

Transparent:  I do not claim to the the “right” lawyer for every client.  Clients who want to be told what to do and who want to see the world in terms of black and white, who want to view themselves as “good” and the other side as “evil,”  will not enjoy my approach to law.  I cannot promise to be perfect, and I cannot promise to “fix” everything that is wrong.  What I can promise to do is to do my best to be competent and to know the law, to give the best advice I know how to give, to refer clients to others with more expertise when that is appropriate, to be honest with my clients, to be fair in terms of billing, and to earnestly work for the good of my clients.

WHO IS A CANDIDATE FOR A PEACEMAKING APPROACH TO FAMILY LAW?

Committed to Fairness:  Mediated and negotiated solutions for family and elder care issues are not appropriate for every case.  I only accept family law clients who are committed to finding fair and workable solutions to challenges that face families and elders.  I do accept elder law cases which may be litigated in probate court, because of the important value of protecting fairness to the vulnerable adult.   By limiting my practice to the niche areas of non-adversarial family law and protection of vulnerable adults, I am able to focus on quality and sustainability of results for people who care deeply about the long term vision for the future of themselves and their families.

Self Aware:  The clients who choose to work with me, and with whom I choose to work, are those who:  (1) understand the value of focusing on healing and wholeness in the long term, (2) understand the value of finding solutions that are fair, precisely tailored to their needs, practical, and sustainable, (3) are willing to pay a fair rate for those services; (4) agree to consult with consulting experts when appropriate (financial advisers, appraisers, psychologists and therapists, vocational rehabilitation experts, legal advisers); and (5) have a high level of insight into their most important goals and target solutions that reflect those values, rather than having solutions dictated or imposed by an outside third party.

LOOKING FOR A CHEAP LAWYER?

Focusing on a cheap solution to family and elder issues can be penny wise but pound foolish.  The consequences of poor decisions don’t just last a lifetime.  They can affect your family for generations, literally.

I spend quality time with every client to learn their values, goals, and circumstances, to help them carefully consider their options, and then to decide on and implement legal solutions which reflect those individual needs and circumstances.   Your conversations with me may involve difficult questions and hard answers.   This is because half baked, knee jerk, and temporary solutions that punt the hard decisions down the road six months are just as unwise for families as they are for Congress.  The most cost effective solution to a challenge is not necessarily the one that is “easiest” or the one with the lowest up front cost, but the one that will meet the parties’ needs in a sustainable and affordable way in the long run.

While it’s true that mediated and collaborative approaches do tend to cost less than litigation, the difference in cost  is due to effectiveness of the process and the solutions.  All emphasis is on finding workable solutions rather than perpetuating conflict and arguing.  Families tend to keep more money in their pocket overall, preserve relationships and ability to work together as families and as parents, and experience less need for future court action.  The investment in a peaceable divorce or quality elder care plan is an investment in a better future.  But please, don’t make the mistake of focusing on “cheap” when you think in terms of family legal solutions.   If you want a “cheap fix,” keep looking.   If what you are looking for, instead, is a fair and cost effective solution to a complex family issue that has legal dimensions to it, you may have come to the right place.

 

 

Food Stamps for the Elderly and Disabled

In South Carolina, elderly and disabled persons who live on income at or below approximately 130% of the federal poverty level are entitled to receive food stamps.

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Peace Of Mind

You’ve established what will happen to your business if something happens to you.

Check.

You’ve executed your will.

Check.

You have a durable power of attorney.

Check.

Health Care Power of Attorney.  Check.

Life insurance documents.

Check.

And so on.  The July 2, 2011, edition of the Wall Street Journal has a list of “25 documents you need before you die.”  That list is worth repeating, as I have done below.  Please print this and use it as a checklist to guide creation of a book to help those who are left behind after you win the lottery and leave for your new life .

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Elder Law is for Every Adult

Elder law is about more than old age. Elder law is about the planning and care that every person needs in order to be prepared for disability or illness.  Disability Planning 101:  Regardless of age, each of us must prepare for the worst.  “What are some of these needs,” you ask?  Every legal jurisdiction is different, and this article is not intended as specific legal advice.  Nevertheless, there are some common themes that everyone must think about if they want to ease the stress of some of  life’s worst case scenarios.

Legal Representation In Elder Cases

Alexandria Skinner does provide legal advice and representation in elder issues (including drafting of wills, trusts, and powers of attorney), in contested guardianship cases, and in probate matters.   These services are provided with the goal of helping clients achieve peace of mind and aiming for the best possible quality of life.   Her fees for legal representation are the same as for mediation, and are outlined HERE.

Mediation and legal representation are completely different functions and cannot be performed by the same person in the same case.  However, hiring Skinner as an attorney does not stop you from mediating a conflict.  If hired as an attorney, Skinner can give legal advice and can assist you as your advocate during any later mediation.

A Video About Elder Mediation

This video about Elder Mediation is produced by Aging Parents.com

What is Elder Mediation, and How to Choose a Mediator?

Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate?  If so, your family may benefit from Elder Mediation.  Elder Mediation offers the same benefits as other mediation:  it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution.  There are other factors which make Elder Mediation very different from other types of mediation.

Elder mediation is distinguished from other forms of mediation by the types of issues involved.  There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a time of immediate crisis or disagreement; and (3) mediation to settle disputes over estate matters.

In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity.  Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult.  Elder mediation helps embattled family relationships overcome these challenges in two ways.  First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships.  Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict.  The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.

Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help.  No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward.  And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit.  This is where an Elder Mediator adds key value.  A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement.  When these measures are taken, there is much less likelihood of later challenge. 

Sometimes the barriers to agreement can be profound.  Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer.  In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to address the serious issues that every aging family will go through.  While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.  

A family navigating the path of caring for an elder may also encounter unforeseen obstacles.  Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry.  For example, suppose one of the adult children has mental or physical disability.  That child may have been able to function by living at home or receiving substantial help from the parent.  As the parent ages and becomes less able to “take care of” that person, other family members may become more acutely aware that something doesn’t seem right.  Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds.  Unfortunately, sometimes adult siblings may be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent.  These times of crisis are challenging for families.  The presence of a neutral mediator can help keep the conversation on track.

Another  challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be.  Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things.  Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind.  The CEO of a corporation may find himself being placed in the role of “little brother” or the sister’s concerns may be dismissed as too “selfish”.  The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check” concerning the veracity of their viewpoints.

These are just a few of the issues!  Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to the unique challenges of each situation.  

In selecting an Elder Mediator, seek a well seasoned mediator who has specific skill and training in Elder Mediation.  Specialized legal knowledge is important, but awareness of family dynamics and skill in multi-party mediation is also vital.  Thus, while many Elder Mediators are attorneys by training, many others have come into the field by way of their specialized background in gerontology, nursing, social work, or counseling.  The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation, or they will demonstrate an extensive professional background in dealing with Elders and their families.  Look for signs that the potential mediator has expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) legal issues related to competency and capacity (an Elder Mediator must take special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow). 

Last but not least, a good Elder Mediator will run a tight ship.  When emotions get stormy, the seas can get choppy.  A good Elder Mediator will calm the waters by keeping the conversation focused and civil.  For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.

As difficult and challenging as conversations about Elder issues may be, wise is the family that has them.  While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be.  Yes, Elder Mediation may be time consuming and complex.  Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved.  Yet, consider the cost of doing nothing:  lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits.  The stakes are high.  Errors can cost not just money, but also relationships in the family and quality of life for the Elder.

A family can pretend nothing is wrong and “fake” peace, or it can sue each other and “break” the peace.  Or, it can deal honestly and fairly with the issues and truly, “make” peace.  The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace — is, by far, the best way.

Additional Resources

Association for Conflict Resolution, Section on Elder Decisions and Conflict Resolution: http://www.mediate.com/acrelder/pg16.cfm

The author with her grandmother

UA-9935214-4
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