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Visiting A Loved One During A Pandemic

 

People hit the hardest by this pandemic, both by contracting Covid-19 and also emotionally, are those who live in long-term care facilities. We have heard through multiple outlets just how hard these facilities have been hit with illness and death. The other side of this is the impact on the residents’ well-being. I have had several clients who have helped their parents move out of a facility and back home because their parents were becoming so depressed. Others have had to go into a facility during this time, which is really scary during a pandemic like this when you don’t know when you will be able to see them again.

In Arizona, these facilities have not allowed outside visitors since March; that is almost six months as of the date of this post. I myself have thought I cannot forgo seeing my granddaughter for an indefinite period of time; which could be months or longer. I represent court-appointed guardians whose obligations include visiting with the protected person. What should families do and how do you make decisions?

The Center for Medicare and Medicaid Services (CMS) has issued an FAQs to help families and facilities make decisions. Click HERE to read through these frequently asked questions.

Here’s what CMS has to say about when facilities should consider opening to visitors. CMS does not recommend re-opening facilities to visitors (except for compassionate care situations) until phase three when the following guidelines have been met:
• There have been no new nursing home onset COVID-19 cases in the nursing home for 28 days (through phases one and two);
• The nursing home is not experiencing staff shortages;
• The nursing home has adequate supplies of personal protective equipment and essential cleaning and disinfection supplies to care for residents;
• The nursing home has adequate access to testing for COVID-19; and
• Referral hospital(s) have bed capacity on wards and intensive care units.

CMS recognizes that there are compassionate care situations in which visitation must take place. These can be end of life related visits or someone adjusting to the move to a new facility or a resident who has had a family member pass away.

CMS also offers guidance and ideas for visits once there is a planned re-opening.
CMS encourages facilities to create safe spaces for these visits. Ask your facility what their plan is for visitation. The heat in Arizona makes the simple answers of moving the visit outside or doing a window visit very difficult; so they will have to get creative. Still, CMS suggests that risk can be reduced by limiting the number of visitors or setting up appointments in which a safe space can be arranged. The facility will likely screen you for a fever and ask you questions before anyone can be admitted in. The visit may not yet include hugs or contact and social distance may still be required.

In saying this, we’d like you to remember there is more than just in-person visiting. We can support our loved ones in many other ways. My sister has been in the hospital for a month or more at a time with her daughter who has Leukemia that requires in-patient chemo. Only one parent is allowed in at a time and no one else can visit. As a result, my sister is isolated for extended periods of time like the residents in the facility. This CDC pamphlet, Supporting Your Loved One in a Long-Term Care Facility gave me some good ideas for my sister’s and niece’s situation. There are some creative ideas for care packages, intercom dedications, and visuals to express caring. Click HERE to view the article and get some ideas for your loved ones!

Best wishes to you and your family during this time. Take care.

Written by: Jennifer Kupiszewski, Esq.

Need A Birthday Gift For Your 18 Year Old?

Best 18th birthday gift? A healthcare power of attorney!

I know this may sound like the most depressing gift, but please don’t stop reading! Stick with me and I think you will agree. And a bonus, it’s free.

A Healthcare Power of Attorney is the document that allows an adult to choose who will make medical decisions for them if they cannot. Your 18-year-old may not be the best decision maker, but they can probably make their own medical decisions. They can ask questions of their doctor, seek additional information, weigh options and they are likely healthy. If you are just thinking about today, it seems unnecessary. But it is not about today, it’s about what happens when the unexpected accident or illness strikes a family.  The most common event I see is a parent needing a guardianship because their adult child was in a car accident. This is not surprising given the fact that car accidents are one of the leading causes of injury in the United States.

More times than I can count, parents come to my office because their adult child has been in a serious car accident and unable to communicate. The most common reason the person is unable to communicate is because they suffered a brain injury during the accident.  The parents have been able to continue making decisions for the child based on the surrogate decision maker statutes. This law allows a parent of the patient to make medical decisions if the patient cannot make or communicate healthcare decisions. Sometimes issues come up during the hospitalization that require the appointment of guardian. Surrogate decision maker statutes do not include handling all the needs that may come up, such as signing contracts for long term care facilities or making decisions on patient discharge.

If the person is transferring to a rehabilitation center or needs a decision maker on a long-term basis once they are discharged, the medical providers will often request that the parents seek guardianship so that they have the legal authority to make decisions on an on-going basis.

The hospital is planning for discharge and they inform the family that they will need to obtain legal authority to continue making decisions for their injured adult child. Even if the prognosis is good for recovery, a brain injury can take months or years for recovery, so a long-term medical decision maker is needed.

This is when the family comes to see us. They are distraught over the tragedy and overwhelmed by the change in their lives. Now they are going to court to obtain guardianship over their adult child. This means filing a petition with the court (so much paperwork), getting the adult child appointed an attorney, personally serving them, being interviewed by a court investigator, and attending a court hearing. This added stress is not what they need. And it is expensive.

This is the heartbreak I see in my practice. The family might have avoided the need for a guardian and the stress and expense of a court process if their adult child had a Healthcare Power of Attorney (“HCPOA”). If the HCPOA is properly drafted they could make those medical decisions, as they would be the nominated agent to do so.

HCPOA is important to me because when my kids were younger, we were struck by an impaired driver and my fourteen-year-old son suffered a traumatic brain injury. Don’t worry he is doing awesome now, graduated from ASU and is a teacher! Had he been an adult at the time I would have had to go through the Court, however, because he was a minor, I was able to make the medical decisions for him. Unfortunately, I have watched other families have to go through the Court because their children were adults that did not have a HCPOA. Having this unexpected tragedy occur, I decided when my kids turned 18, I would give them the gift of a HCPOA.  As you can imagine, when I presented them with their gift they groaned and rolled their eyes a little, but eventually they came around, realizing it is an amazing gift for them and for their parents.

Having the HCPOA ensures that if something happens to your adult child, you can take care of them immediately and long term. It allows the family to focus on the person injured or impaired and to not be distracted with the expense and process of having to seek guardianship through the court.

As I mentioned, it is free to create your own HCPOA! The Arizona Attorney General’s website has a free Lifecare Planning Packet, which includes all of the documents you need. CLICK HERE to visit the Arizona Attorney General’s website.

Congratulations on your child turning 18 and give them the gift of planning and protection!

Written by: Jennifer Kupiszewski, Esq.

Why Would A Minor Need A Conservatorship?

This is a question we get often, and our family is a good example of why one might be necessary. My kids and I were struck by an impaired driver in 2002. It was a horrible time. They both suffered traumatic brain injuries as well as many other injuries. They ended up receiving an insurance settlement from our uninsured motorist coverage. If you don’t have uninsured motorist coverage, I will take this moment to let you know that I highly recommend you consider getting some. In our case the impaired driver was driving on a suspended license and had no insurance. Therefore, all of the insurance proceeds came from our underinsured motorists’ coverage. Without it, there would have been no additional funds to help them.

I was appointed by the Court as their conservator while they were minors. The kids are grown now and doing really great. Both have graduated from college and are working in their chosen professions, so we have a happy ending. Admittedly, getting there was a long and difficult road. Here is what I would have wanted to know about minor conservatorships when I was getting appointed as one.

A conservatorship is a protective proceeding to protect, or “conserve,” a person’s money and property if the person is unable to manage their own assets and those assets are at risk of waste or dissipation. A minor is legally incapacitated and cannot manage their own affairs. A minor is a dependent of their parent and is not required to support his or herself until  age 18. Therefore, if a minor receives an inheritance or personal injury settlement those funds must be placed in a conservatorship monitored by the court. When the minor turns 18 he or she can access their settlement funds. A few basics about how this works.

The most common situations a minor conservatorship is needed are: Inheritance such as, life insurance or a distribution in a probate matter.
A settlement from a personal injury or wrongful death case.

How Is a Conservator Appointed?
You have to file a petition with the Superior Court requesting to be appointed as the conservator. The petition must tell the Court who needs a conservator (the proposed protected person ie. the minor), why the appointment is necessary, what money or property is at risk and who is requesting to be appointed. If it is in the result of a legal settlement, the insurance company may provide a lawyer to set up the conservatorship. On the other hand, if it is from a probate or life insurance inheritance then the estate’s personal representative or the life insurance company will direct the parent to set up a conservatorship.

The Court case:
The case is initiated when the lawyer for the family files a petition with the court for the appointment of a conservator. After the filing of the petition, the Court will set a date and time for a hearing.  The petition must tell the court who needs a conservator, who is asking to be appointed, their contact information and why a conservator is needed. Just like any other court case persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
Who may be the conservator? Parents have priority for appointment. Although, the appointment of a parent is not required. Even though a parent has priority they must still be a qualified conservator. For example, if the parent has a criminal history, they may not be able to serve as the minor’s conservator.
What is notice and who gets it? A person entitled to notice must receive a copy of the notice of hearing and the petition that was filed. For a case involving a minor, both parents of the minor must be notified of the hearing.  If the minor is over the age of fourteen, he or she must also be provided with notice of the hearing.  They may also have a say in who will be the conservator.
What will happen at the hearing? The Court will take testimony about why the conservatorship is necessary, if the nominated conservator is the right person to serve, and what the nominated conservator intends to do with the minor’s funds/assets until the minor reaches the age of majority.
What happens after the hearing? If a conservator is appointed the court will sign its order approving the appointment. Then the conservator must get their letters issued from the Clerk of the Court.

A few more questions:
If the inheritance was left to the minor as a Trust asset is a conservatorship needed? Probably not, so long as there is a trustee and the assets are held in trust for the minor’s benefit.
Can the money be invested? Yes, the conservator can invest the funds or settlement funds may be placed into a structured settlement to increase payments over time.
Is it possible to use some funds during the child’s minority? Yes, but usually only for needs above and beyond the parents’ obligation to support the child. A good example is a vehicle. Parents have to provide for their child’s daily support, but they are not required to provide a car to the minor. The settlement funds were likely put to in a restricted account from which no withdrawals can be made without court approval and a request will need to be made to the court to release the funds to make the purchase.
If the child has special needs, can you obtain the settlement and still maintain benefits? Absolutely, the settlement can be placed into a special needs trust so the minor can receive government benefits and have these additional funds to meet needs not covered by the government benefits.
What happens when the minor turns 18? If the settlement is not in a structured settlement or a special needs trust it is pretty simple. A petition to release the funds is filed with the court, a hearing is held, and the Judge wishes the minor the best.
I read that a conservator must file an inventory, budget and accounting. Is that the same for a minor conservatorship? There are many requirements for a conservator of an adult that may be waived in the case of a minor.

I hope this was helpful. We have more information on our website, our blog and YouTube Channel.

Written by: Jennifer Kupiszewski, Esq.



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