One of the organizations that is close to the heart of associate attorney, Cameron DeGuerre is the Auxiliary Board of Northwestern Memorial Hospital. The Auxiliary Board is composed of young professionals who raise money to support research programs at Northwestern. For the past two years, the board has been supporting the work of Dr. Sunt Das and Northwestern’s Brain Tumor Institute to advance the research and treatment of brain tumors, like the tumor that ended the life of the famed Ted Kennedy. Currently, an adult with a malignant brain tumor is only 30 percent likely to survive five years, showing the desperate need for Northwestern’s research.

The Auxiliary Board’s annual event “Summer Lovin’” will be held this Friday, June 18th at the Museum of Contemporary Art. The event will showcase the museum, live music, 13 dining stations, 8 premium bars and Chicago Magazine’s “Most Outstanding Singles of 2010.”
So come support a great cause! You can buy your tickets at the door or save your spot online by clicking here.

*To learn more about the Brain Tumor Institute of Northwestern Memorial Hospital, click here.

*To learn more about the Auxiliary Board of Northwestern Memorial Hospital, click here.

From Left to Right: Kerry Peck, Diana Law and Ed Boyer.

Last month, I had the opportunity to not only attend the National Academy of Elder Law Attorneys conference, but also be a presenter….and it didn’t hurt that it was in Orlando, Florida at Disney World. I spoke with my good colleagues Diana Law, of Law Elder Law, and Ed Boyer, of Boyer & Jackson.

The topic of choice was Restoration Hearings: removing a guardian because the ward is no longer “disabled”. Restoration is rare, but not improbable. The basis for a determination of disability by the probate court may be reversed when the disabled person has dramatically improved. During a restoration hearing, medical evidence is presented which demonstrates that the disabled person is now capable of making personal and financial decisions and suffered from a medical condition that has vastly improved.

*Example: John Doe gets into a car accident resulting in a closed head brain injury and severe physical injury. He needs full time care and can no longer manage his estate; therefore, a guardian is appointed. Three years later after physical therapy, rehabilitation, multiple surgeries and drug treatments John is back to full capacity and no longer requires a guardian.

But the recovery does not always need to be this cut and dry. The ward does not need to be able to perform every task in regard to managing his estate and care himself. One issue is: has the disabled person recovered sufficiently enough to communicate to others “responsible decisions” regarding their care?

A restoration hearing is similar to a guardianship hearing because the bottom line is the same: What is in the ward’s best interest? What is the best way to safeguard the ward’s rights? The restoration process is rarely successful except in cases in which the disabled person has a severe temporary disability or a severe disability which improves in an incredible fashion.

Most people create a will with the idea that once they pass away, decisions regarding the distribution of their estate will have already been made, therefore, their wishes will be followed and they can have peace of mind.

Unfortunately, this is not always the case.

Unless your estate planning documents: wills, trusts, etc…are drawn up properly (aka: NOT PRINTED OFF THE INTERNET) you may run into family battles and court litigation over who gets what. A carefully prepared and executed will is the ultimate shield to a disgruntled heir.

Tips to Prevent Post-Death Litigation & Create a Rock-Solid Will:

• All conversations between the will maker and the attorney should be recorded (notes of conversations, cover letters, drafts, emails, phone conversations, etc.);
• Clearly recognize special relationships in documents naming beneficiaries: step children, domestic partners, long time friends, and other non-heirs with close relationships;
• If a legal heir is “disinherited” the will should state the name and relationship of each disinherited heir and the intent of the will-maker to “disinherit” each;
• Keep a copy of the physician’s report of the will maker’s physical and mental condition on the day the will was signed;
• Keep a list of everyone attending the signing ceremony and everyone who saw the will maker that day;
• Life-long friends, not strangers, should witness the signing of all estate planning documents;
• Execution of wills and trusts should be witnessed by more than the number of witnesses required by law (2);
• Keep copies of all prior wills created.

The best advice is to be completely candid in your estate planning documents. Secrets are never a good thing within a family. If you expect family members to be disappointed, inform everyone of the changes in your estate planning documents in writing. Not every estate can be administered seamlessly, a good elder law attorney will make sure that all the tips I listed above are followed. So call an experienced estate planning attorney to help you navigate through the legal jargon and avoid disputes.

The Life Services Network represents long-term care providers of nursing care, supportive and assisted living, senior housing and home and community-based services for seniors over the age of 75. Peck Bloom is a proud member of the Life Services Network.

For more information on the expo or the Life Services Network, click here.

If you are not familiar with the new regulations Illinois has adopted, take a moment to read my article, which was published in the CBA Record February/March 2010 issue: Uniform Adult Guardianship & Protective Proceedings Jurisdiction Act.

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

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

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.

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.

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.”