First of all, a living will is not a will.

A living will and power of attorney for health care are both types of advanced directives: a legal declaration of how you want future medical decisions to be made should you be unable to make that decision yourself. Both documents, in essence, force caregivers to give you the specific treatment you want even when you cannot communicate that choice. Advanced Directives are drafted earlier in life, when you can fully understand the choices you are making (capable) and jump into effect when you no longer can understand those choices (incapable).

A health care power of attorney authorizes the trustworthy person of your choice to make medical decisions for you, based on the preferences you stated in the power of attorney. People often choose a family member, close friend or their attorney to act on their behalf.

A living will entrusts the medical preferences you dictated within the document to be followed by a doctor directly rather than electing a family member or friend to speak on your behalf. Also, while a power of attorney can go into effect at anytime you are incapacitated (ex: having surgery) a living will is ONLY for using, withholding or withdrawing life-sustaining treatment (to pull the plug or not to pull the plug). The living will becomes effective legally when you are determined to be permanently unconscious or brain damaged by a certified physician.

The power of attorney document is more flexible as it is not confined to terminal conditions, like the living will. Also, the power of attorney can either direct the agent to follow their specific instructions or to use their own best judgment based on the circumstances. While a living will only addresses issues relating to the postponement of your death, the health care power of attorney can address all types of issues, including life-sustaining treatments.

By making these end-of-life decisions ahead of time, you save your family the difficulty, confusion and burden of making life and death decisions during an already emotionally tumultuous time.

For more information, check out the Chicago Tribune article, “Help with End of Life Plans” I am quoted in: http://tinyurl.com/yzbmpfn

Alzheimer’s Disease and Dementia are not interchangeable terms. Although they have similar symptoms and are branches of the same overall problem, it is critical to make a distinction between the two through a medical diagnosis by a dementia specialist. I scanned through several articles on the Internet and made a small comparison of the two conditions.

1. Alzheimer’s Disease: (Unique Disease)

• Alzheimer’s is the most common FORM of dementia.
• Severe memory LOSS (as the disease progresses).

Ex:) Forget how to dress, Fail to recognize familiar people/places, Problems speaking/reading/writing, Tendency to wander away.

• Can occur as early as 45 years old.
• Different for each individual affected by the disease.
• Progressively gets worse, is fatal.

2. Dementia: (Umbrella Term)

• Describes a number of symptoms related to mental degredation.
• Common problem in the elderly population
• Diagnosed later in life: 70-80 years old
• Some causes of dementia are treatable
• Memory IMPAIRMENT related with old age

Ex:) Forgetfulness, Difficulty making plans/thinking ahead, Orientation problems.

• Includes: Alzheimer’s Disease, Parkinson’s Disease, Vascular Dementia, head injury, delirium, stroke, brain tumor, Alcoholic Dementia, Multi-Infarct Dementia, etc…

For more information on Alzheimer’s Disease and related dementias, visit the wealth of information at the Alzheimer’s Association website at: http://www.alz.org/alzheimers_disease_related_diseases.asp

Politicians and the media keep throwing out numbers regarding the size of the older adult population in America as if it was dooms day. While researching for this blog I saw the increase in elderly termed as the “Longevity Revolution.” But seriously, how does this really effect us?

In 1950, 12.7 million people lived to 65 or older. In 2004, that number increased to 36.3 million. The life expectancy is currently 78 years old with most people living longer due to advances in science, medicine and technology. The elderly population now outnumbers children under age 5. The elderly have gone from something businesses termed as “not a viable demographic” to having considerable clout- there is power in numbers. On top of having the numbers, seniors control about 3/4 of the country’s wealth. Seniors previously labeled as frail or feeble, are stepping out of the stereotype, enriching their lives through traveling, continuing their education, and exploring new hobbies.

The extended human life span is both an achievement and a challenge. Seniors can no longer be ignored and now the country is scrambling to address the needs and concerns of the aging population including caregiving and health costs. With an increase in age comes an increase in chronic diseases. There are strains in social insurance, pensions and other government support systems. Retirement patterns are changing causing a clash between the official and actual retirement age.

The statistic equation of the aging population is something that effects everyone. Long life means changes in health and well-bieng, economic activities and social cohesion.

For more information you can visit Illinois’ Department on Aging or the Federal Administration on Aging.

Some of the most frantic calls I receive to my office are regarding that misunderstood, dreaded word: MEDICAID. People either try to apply to the program with no assistance or knowledge of the requirements and get denied for application errors, then call us for help, or are filled with worry based upon rumors friends and family have told them.

Medicaid is an essential health and long-term coverage funding program for most seniors. About 60% of Medicaid funding goes to the elderly and disabled. One of the reasons Medicaid is muddled in myths about what is involved in the planning process is because people will consult their neighbors over a experienced attorney regarding Medicaid qualifications.

1.) The number one myth is that you must sell your home, or better yet, ALL your belongings, in order to be eligible for Medicaid. Medicaid is a type of welfare program, therefore, you can only have a minimum number of countable assets to qualify.

Key word: COUNTABLE assets.

 You cannot have more than $2,000.00 of countable assets. Countable assets are things like bank accounts and mutual funds (think plain and simple money). You CAN have a house, a modest car and miscellaneous personal property in addition to that $2,000.00 of assets.

2.) On the opposite side of the spectrum, people also spread the myth that it is against the law to sell/gift ANYTHING in order to be eligible for Medicaid. Despite what you have heard, it is NOT against the law to sell your assets in order to qualify. Yet, Medicaid does have complex gifting rules, and you will be vulnerable to a period of ineligibility after transferring assets.

The rule is: for every month of assisted living care you give away, you loose a month of Medicaid eligibility. Well, what is a month of assisted living care in Medicaid terms? If the average monthly nursing home rate is $2500, and you give a relative a gift of $25,000 in order to be eligible for Medicaid, then you will not be eligible for about 10 months and must wait to apply ($25,000 divided by $2500). Interpretation of this rule are often what leads to failed applications or the belief that you are not eligible to apply at all.

 Medicaid is one of the most unintelligible, complicated government programs, so beware battling this beast alone. Moral of the story: ask a QUALIFIED Medicaid attorney for advice and planning assistance.

As a loved one gets older, there becomes a fine line between the effects of old age and ”dementia.” When it comes to guardianship: taking away the loved one’s ability to make personal, financial and medical decisions, be careful not to attribute serious disabling conditions to the “normal effects of aging,” but also not over exaggerate common forgetfulness or a deteriorating physical condition.

Always seek professional diagnosis and guidance.

The law assumes all adults have decisional capacity, unless proven otherwise by a qualified medical specialist and Judge. A comprehensive, multi-disciplinary evaluation, including an evaluation by a specialist, is preferable. When the doctor is completing the report they will analyze any mental or physical conditions which affect the patient’s memory, judgment, comprehension, and ability to make decisions. The focus is on the individual’s decision-making abilities, rather than on age, physical, or mental condition.

Remember: capacity is not an all or nothing concept: It runs along a continuum and can vary according to time of day,  tasks presented, and life stressors.

All competent adults in our society have the right to make mistakes, exercise poor judgment, and make choices contrary to their best interests. The issue is not whether the person can make a “good” decision, or the “right” decision, but rather can they understand the various options and then choose a course of action, based upon reasons of importance to them.

Disagreement with recommendations of  medical providers and refusal to cooperate with efforts to prevent or rectify physical, emotional or financial abuse are not justifications for the imposition of guardianship. If a person is capable of understanding the available options, and deciding what he wants, guardianship is not appropriate, even if the chosen course of action is contrary to the person’s own best interests.

To avoid paternalism with respect to decisions of an older adult, determine whether it is the decision, or the decision-making capacity, that is truly at issue: consider whether a 30-year-old non-disabled person would have the right to make the same decision without interference by those who would seek to “protect” the person “from his own folly.”

Whether it’s the down economy or a feeling of obligation, it seems the trend in caregiving is shifting from assisted living facilities to home care. My notion was confirmed this morning through statistics I found on the FamilyEducation website concerning family caretakers. Of the 65 and older population that require daily assistance, 1.6 million are living in the community compared to the 1.5 million who reside in nursing homes. From the population of family members who are caregivers, 64% still work full or part time.

Becoming a caretaker can overtake your personal life, cause excess stress, and often provide little recognized reward. Caregivers can easily become burned out without the proper education and support. Remember: this is not something you should try to bear alone. Don’t be afraid to ask for help, seek support and reward yourself with breaks. Ask family and friends to babysit, find community resources (adult day care, transportation services, and senior centers), and confide your feelings in others through caregiver support groups or a couselor. Educate yourself as much as possible on your loved one’s condition and do not be afraid to reach out or confide in their physician.

Seniors are particularly vulnerable to financial exploitation because they have accumulated a lot of wealth over their lifetime and they can be subject to memory problems or dementia, which can cause them to be easily coerced.  Although the news often reports mailer scams as the culprit of senior citizen exploitation, it is important to remember that an abuser can be ANYONE and often it is the ones closest to the older adult, such as caretakers, relatives, or “friends.”

15 Warning Signs of Financial Exploitation:

• Large and increased, unexplained withdrawals of money from their bank account;
• Sudden changes in their financial situation (they are unable to pay their bills);
• A new friend isolates them from long-time family and friends;
• Changes in powers of attorney, will, deeds, property titles or other legal documents;
• Unnecessary purchases;
• A stranger offers investment advice or an “investment opportunity” that can’t be missed;
• Financial records go missing;
• Victim is asked to risk assets by co-signing a loan, providing collateral or giving access to their personal accounts;
• Win a “prize” that requires a large amount of taxes to be paid up front;
• Dissapearance of valuables;
• Victim receives unsolicited telemarketing calls or mailers requesting bank account, credit card, or social security number;
• A stranger is added to their accounts;
• Applies for a credit card for the first time; or
• Appears to have signed a document but it looks forged (ex: Suspicious signatures on checks)

If you are the primary caretaker of an older adult, be aware of the warning signs of financial exploitation. Often, the elderly person will not realize they are being exploited or not want to turn the exploiter in for fear of being alone. They also may be embarrassed or ashamed that they were tricked. It is hard to prove that your loved one is being financially exploited. Therefore, if any warning signs  arise, you should consult an elder law attorney immediately before the damage becomes worse.

A recent Lawyers.com survey reveals a drop in estate planning for 2009, with only 35% of Americans having a will. Although the down economy is causing everyone to cut corners and cut back, the repercussions of not having an estate plan upon death haven’t changed. No matter what your net worth, just as you are still putting money into your 401K for retirement, it is essential to have a basic estate plan in place to relieve your family of the unnecessary stresses related to end-of-life issues and probate.

Estate Planning Can:

• Protect assets from creditors;
• Preserve family wealth for future generations;
• Put conditions on HOW and WHEN your assets are distributed;
• Assure that your money and property go to the people YOU intend upon death;
• Prevent disputes or confusion regarding inheritances;
• Declare whom you want making medical and financial decisions for you if you are incapacitated; and
• Reduce estate and gift taxes.

Plan in advance to avoid court battles involving end-of-life decisions or post-death family disputes, which cost much more than the basic estate plan.

As the senior population rises, the licensed health care professionals needed to care for our seniors are dwindling. As we see more and more cases of improper care at nursing homes and elder abuse in the news, the need for proper training of health care professionals has become critical to ensure the elderly are aging with dignity. This act, introduced January of 2009 as an amendment to the Public Health Service Act, will ensure that every senior has access to quality care. I worked congresswoman Jan Schakowsky, http://schakowsky.house.gov/, and the National Association of Elder Law Attorneys, http://www.naela.org/, to promote this legislation on Capitol Hill.

The act emphasizes the following:

• Expand education and training in long-term care, geriatrics and chronic care for licensed health professionals;

- Only 1 percent of all nurses are certified in geriatrics.

• Training of home care aides; and

- Among the fastest-growing occupations; and

- Currently not subject to any federal requirements related to training.

• Training to family caregivers.

- Estimated 44 million family caregivers in the U.S.; and

- Will develop a family caregiver training materials, including referral protocols  for families caring for Medicare beneficiaries.

This act will also amend the Workforce Investment Act of 1998 to provide information to dislocated workers and veterans about long-term care occupations and employment opportunities. As of now, the bill has been referred to the House Committee on Education and Labor but as the baby boomer generation is now reaching retirement age, we are faced with a crisis of meeting the care needs of every older American. The government needs to address this problem through redesigning, strengthening retention, educating and training the health care workforce.

Nowadays, it seems you can find every answer under the sun on the internet. Although it can be overwhelming at times, I can’t imagine my life without the internet nor can I imagine it before the internet.

In relation to elder law, there are many “go-to” sites I like to recommend, here are my top five:

• Elder Law Answers: This site not only provides “ElderLaw 101,” which contains answers to questions about estate planning, medicaid, nursing home issues and all other areas of elder law, but it also provides attorney recommendations and has a live radio program you can listen to on the web. http://www.elderlawanswers.com
• National Academy of Elder Law Attorneys (NAELA): NAELA provides a database of dedicated, quality, elder law attorneys. Their site also features aging trends, a monthly newsletter, “Eye on Elder Issues,” and headlines of elder law news featuring articles on social security, medicaid, retirement, and all the other hot topics on Capitol Hill. www.naela.org
• National Family Caregivers Association (NFCA): NFCA provides resources, education and support for anyone caring for a loved one with a disability, chronic illness or suffering from old age. The site directs you to networks of caregivers you can connect to in your community for support as well as caregiver statistics and a database of agencies and organizations caregivers can reach out to for information, training or respite. www.nfcacares.org
• Aging Info USA: This is the go-to directory for every service related to elder care. They have recommendations for senior housing, home healthcare services, geriatric care management and elder law attorneys, to name a few. The yellow pages of elder services.  www.aginginfousa.com
• The Alzheimer’s Association: The Alzheimer’s Association has created an in-depth site with the best and most up-to-date information you can find on the internet in relation to Alzheimer’s Disease treatments, clinical studies, research, facts and more. They provide a 24/7 help line, a virtual library and a comprehensive list of local support groups. This site educates, raises awareness and is simply a great relief to any family dealing with Alzheimer’s Disease. www.alz.org

Like I said, this is only five of the MILLIONS of resources available on the web. If you know of a good site I could be missing, let me know!