Elder law: Planning at time of diagnosis

Most patients and their family members are not entirely surprised when a diagnosis of demen­tia is made by a physician.

The patient and the family member have prob ably been noticing subtle changes for some time. However, when these suspicions are confirmed by a diagnosis, the patient and the family members need to carefully assess their situation and confirm that appropriate planning is done to ensure the best care without creating a financial crisis. When the diagnosis of de­mentia is made early in the disease process, the patient can take part in the planning process, allowing the family to map out the type of care to be utilized at the various stages of the illness.

Most people prefer to receive care in their own homes. Typically, family members are the initial caregivers for their loved ones. As care needs increase, family members can quickly become overwhelmed. Initially, the family may decide to hire caregivers to help with the care in the home setting.

Families need to under stand the differences be tween nurse registries and home-health agencies when contracting for care. When hiring a home-health agency, the contract is between the agency and the client, and the home-health aides and nurses are employees of the agency. Nurse registries act to match a patient with an independent home-health aide or nurse. Once the match is made, the contract is between the client and the aide or nurse individually.

It is critical the client understand who will be responsible in the event of theft or negligence or if the worker becomes injured on the property. Families need to understand the amount of supervision of the worker the company provides. If the company does not supervise the worker and the patient has dementia, the family must closely watch the situation to ensure services are properly provided. Different companies have different contractual provisions and protocols for services.

Elder-law attorneys should be familiar with the contract types and be able to advise families about the choices available.

When an early diagnosis is made, the patient will have an opportunity to consider changes to the estate planning documents in place. If a patient can pay the cost of care from income indefinitely, then the typical revocable living trust planning is appropriate.

However, if a family can not pay for care from income without impoverishing the spouse, the documents need to be revised in order to allow maximum flexibility for planning to utilize government benefits such as veterans’ benefits or Medicaid. Many families wait until a person with dementia is too impaired to make changes. Then, whatever documents are in place must stay in place.

If the documents do not specifically allow for planning for government benefits, such planning cannot be done legally.

Jill Burzynski is the only board-certified elder law attorney in Naples. Reach her at (239) 434-8557 or jjb@burzynskilaw.com

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