Monday, December 8, 2008

New Laws to Take Effect in 2009 to Assist California Elders

As 2009 quickly approaches, several new laws affecting elder and nursing home abuse will take effect on January 1. Hopefully, they will help protect elders from financial abuse and encourage and make it easier for nursing home residents and their families to report theft and abuse in nursing homes.

Several Laws Aim to Protect Elders from Financial Abuse
Financial abuse is one of the greatest threats to elders. Whether it is by family members, nursing homes and their staff, or scam artists who are complete strangers, elders are particularly vulnerable because of their often poor health and mental state. The most important law taking effect at the start of 2009 will amend the Elder Abuse and Dependent Adult Civil Protection Act. The law’s goal is to make it easier for elders and their families to recover from financial abuse due to undue influence. Undue influence occurs when someone pressures an elder to give away money that he or she would not normally have voluntarily given.

This law also makes it easier for families to sue by extending the statute of limitations to four years. Therefore, if you believe a family member has made a financial decision due to undue influence, you now have four years in which to sue for recovery. An extra year can be very helpful because it can often take some time to discover that financial abuse has occurred.

Law Hopes to Encourage Reporting of Property Theft in Nursing Homes
Supporters of another important law taking effect January 1 hope that it will encourage elders and their relatives to report stolen property – primarily cash and valuables like jewelry – to the local police and ombudsman offices, and not just to the nursing home administration. The new law would require local police and the ombudsman to immediately report suspected or known theft and abuse to the local District Attorney’s Office.

According to San Diego County Deputy District Attorney Paul Greenwood, nursing home staff will often keep reported thefts quiet and handle such matters internally instead of going to the police. This means that property is often never recovered, because many nursing homes say that most property is simply lost and misplaced by elderly residents, as opposed to being stolen by staff.

The best way to prevent elders’ valuables from being stolen is to remove them from the nursing home and store them in a secure place. Also, family members should immediately report any missing items to the nursing home administration, but if the property is not recovered within a day, they should contact the police directly.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one have been the victim of abuse, negligence, or neglect by a nursing home, contact an attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

Thursday, November 13, 2008

$3.8 Million Budget Cut to the Ombudsman Program May Put California Elders at Risk

On September 23, 2008, Governor Arnold Schwarzenegger signed the 2008-2009 California budget. A small line in this budget included a $3.8 million budget cut to the funding of the state’s long-term care ombudsman program. Retroactive to July 1, the cut removes almost half of the state’s funding for this program.

The California ombudsman program, which is mandated by both state and federal law, sends volunteers into nursing home and other long-term care facilities to monitor and investigate patient treatment and to respond to and settle complaints about nursing home abuse or neglect. State-certified volunteers do much of the work, which includes visiting nursing homes and responding to complaints by patients and their relatives. Advocates of the program say the ombudsmen help protect vulnerable elders, most of whom who have no friends or relatives to visit them and monitor their treatment.

The budget cut came just days after the Inspector General of the Department of Health and Human Services released a federal government report about nursing home abuse and neglect nationwide. While 90 percent of nursing homes around the country were found to be deficient in some way, the report revealed that a staggering 99 percent of California’s nursing homes are violating federal standards.

Budget Cut Already Forcing California Ombudsman Program Office Closures
Because the budget cut was retroactive to July 1, 2008, the effects on the ombudsman program offices are being felt immediately. Already, one of the nearly three dozen county and local offices has had to close; others have had to cut their staffs in half due to losing over half of their annual budgets. Some offices now have just two staffers left to respond to thousands of annual complaints across hundreds of facilities. One office in Northern California has even seen its budget cut completely.

These office closures will potentially have a devastating impact on the way California’s elders are treated in nursing homes around the state. Considering the federal report’s findings about the state of California’s nursing homes, many groups are concerned that already vulnerable elders are at an enormous risk for abuse and neglect that will go unreported.

Outrage in California’s Senior Citizen Community
Many advocacy and senior citizen groups have already expressed anger at this budget cut. Seniors Organizing Seniors, one of the groups that organized a protest in Sacramento, is especially concerned about the cut to the ombudsman program because of the increasing number in nursing home abuse and neglect complaints. California Advocates for Nursing Home Reform (CANHR) (, the statewide advocacy group for nursing home patients, agrees. CANHR has also questioned the cuts because funding for the statewide ombudsman office, which oversees the program on a state level but provides no services to nursing home residents, was not cut, and none of the state office’s funds have been redirected to the local offices that are now struggling.

Seniors have vowed to keep protesting and fighting until Governor Schwarzenegger reinstates the funding to this and other programs that were cut in the budget.

Thank you for reading my blog. If you suspect that a loved one has been a victim of nursing home abuse or neglect, contact me for immediate assistance.

Wednesday, October 15, 2008

Update on Investigation of Elder Abuse at Calabasas Nursing Home

Investigation of Death Led to Allegations of Senior Abuse

In a prior blog entry, we followed the investigation into the death of Elmore Kittower, an 80 year-old resident of Silverado Senior Living in Calabasas. Kittower’s widow, Rita, was told by a woman claiming to be a nursing home employee that her husband had been beaten and suffocated by another employee at the nursing home. This led to an investigation by the Los Angeles County Sheriff’s Department and resulted in a finding that the trauma to the body was consistent with an assault.

The Los Angeles Times reported this week that the investigation of Silverado has been expanded to include the examination of the possible abuse of three other elderly residents of the nursing home. Cesar Ulloa, a former Silverado caregiver, is alleged to have abused the three other residents. Ulloa has been charged with four counts of elder abuse and one count of torture. Ulloa entered a not guilty plea, when he was arraigned in Los Angeles Superior Court.

An autopsy performed on Kittower, the resident whose death sparked the investigation, revealed that he died due to lung blood clot. However, the report also indicated that “blunt force trauma” played a role in his death. Moreover, Kittower’s body had multiple bruises and evidence of a recently partially healed rib fracture.

Another resident of Silverado that was allegedly harmed was the mother of Keith Stubbs. Stubbs was told by authorities that his mother was awakened and forced out of bed by having her chest jumped on. Stubbs’ mother had a brain condition that prevented her from being able to speak, preventing her from reporting any possible abuse.

Ulloa’s other alleged victims are two other Silverado residents, Richard McDonough and Robert Turner. Turner’s nephew, Richard Skowronek, indicates that he was told by authorities that, at the very least, his uncle was punched in his stomach.

A spokesman for Silverado, Mark Mostow, said that the company screens its potential employees, which includes background checks, and that all employees undergo an elder-abuse reporting program that the California Department of Justice conducts. Mostow indicated that Ulloa, who Silverado fired last year, seemed to have a friendly and outgoing demeanor that was well received by the families of residents of Silverado.

Stubbs indicated that he did not suspect that his mother had been abused. However, in retrospect Stubbs noted he started seeing bruises on his mother’s arms and neck even prior to Ulloa beginning work at the nursing home, and that more recently he noticed that his mother recoiled when visiting loved ones touched her, which she had not done previously.

The California Office of the Attorney General reports that between 2005 and 2006, there were 108 criminal filings and 60 convictions involving elder abuse, and 25 civil complaints filed and 22 civil judgments. A total of $4,806,652 was awarded in those years in restitution and penalties, from both criminal and civil cases.

Families of nursing home residents must be vigilant in their observations to protect their loved ones from possible abuse. The California Attorney General’s Crime and Violence Prevention Center suggests that you look for the following possible indicators of abuse:

Physical indicators

  • Unexplained bruises or welts
  • Poor skin condition or poor skin hygiene
  • Untreated medical condition
  • Cuts, pinch marks, skin tears, lacerations or puncture wounds
  • Bruises or welts in various stages of healing

Behavior Indicators

  • Confusion, withdrawal, fear, or anger

Social Indicators

  • Interaction or activity within the family is restricted or prohibited
  • Not given the opportunity to speak for him/herself or see others without the care-giver present

Financial Indicators

  • Lack of amenities - TV, personal grooming items, appropriate clothing

For further information on the warning signs of elder abuse, visit the California Attorney General’s Crime and Violence Prevention Center at

Thanks for reading my blog. If you suspect that a loved one has been a victim of nursing home abuse or neglect, contact me for immediate assistance.

Monday, September 29, 2008

Governor Schwarzenegger Signs Elder Abuse Bills into Law

California Governor Arnold Schwarzenegger signed several bills designed to protect the elderly into law this week. The new laws provide a plan for the elderly in the event of a disaster and offer greater protection for the elderly from financial elder abuse. The following is a brief synopsis of these new laws:

Two bills targeting nursing home and residential care facilities were signed this week:AB 2370 is aimed at preventing nursing homes from hiking their rates without notice. The law requires residential care facilities to annually post information regarding recent rate increases, requires the disclosure of rate increase information to new residents, and, upon request, to requires the disclosure of rate increase information to prospective residents.

AB 749 is designed to protect the elderly in the event of a disaster or major power outage. The law requires residential care facilities to have a comprehensive emergency plan by March 1, 2009 that provides that the facility will be self-reliant if necessary for at least 72 hours. The plan must be available to residents and emergency personnel.

The following bills are designed to offer greater protection from physical abuse to the elderly and their families:

AB 2100 is designed to encourage people to come forward with suspicions of elder abuse. The law requires ombudspersons at long-term care facilities to report cases of alleged or suspected physical abuse, including sexual abuse, and financial abuse to the local district attorney’s office.

AB 225 applies to restraining orders issued in elder abuse cases. The law extends the protection of a restraining order to include named family members, household members and conservators of the elder abuse victim.

The following three bills are aimed at those who run scams targeting the elderly or are engaged in financial elder abuse:

SB 1136 makes it a misdemeanor to charge an “unconscionable fee” to qualify a person for a public social service benefit, including Medi-Cal.

AB 2149 regulates the use of “expertise” designations and requires advisors to take training courses before holding themselves out as having specialized knowledge regarding the financial needs of seniors. The bill is designed to prevent the elderly from falling prey to unscrupulous financial advisors who claim to be experts on financial planning for the elderly.

SB 1140 extends the statute of limitations for a claim for damages due to financial elder abuse to four years from the plaintiff discovers, or should have discovered, the abuse. Presently, the statute of limitations on such a claim is three years. In addition, the definition of financial abuse of an elder is expanded to include the action of taking, appropriating, obtaining or retaining, real or personal property by undue influence.

Thanks for reading my blog. If you suspect that a loved one has been the victim of physical, financial or sexual elder abuse, contact me for assistance.

Tuesday, September 2, 2008

Class Action Lawsuits Against Nursing Homes

This week a class action lawsuit against the corporate owner of a group of nursing homes in Southern California was settled for $2 million. The lawsuit was filed on behalf of residents who were promised a high level of care by the nursing home operator. The lawsuit alleged that while the residents were promised quality care, the nursing homes were understaffed and the owners knew they could not provide the promised level of care given their level of staffing. The residents sued, alleging the owner’s conduct constituted fraud. During the course of the lawsuit, it was discovered that one of the nursing homes in question had 77 health and safety violations within the past four years.

A similar class action lawsuit has recently been filed in the state of Washington against the corporate owner of 15 nursing homes in Washington, accusing the owner of luring residents in with false advertising and charging for services that were never provided. The lawsuit also alleges that the nursing homes were understaffed and that the quality of care suffered as a result of understaffing.

A nursing home class action lawsuit is a lawsuit brought by an individual resident or a group of residents, on behalf of a much larger group with the same or similar problem or complaint. A class action lawsuit is typically brought where others have been injured in the same manner and it is too expensive or impractical to bring an individual lawsuit. Nursing home class action lawsuits serve an important function in that they provide oversight and force nursing home owners to improve the quality of the care they provide.

Nursing homes are in the business to earn a profit, and in striving to maximize their profits, many nursing homes fail to maintain an appropriate level of staffing and are seriously understaffed. There is a direct correlation between the quality of care and the level of staffing; if a facility doesn’t have enough staff, the incidences of elder abuse and neglect are significantly higher. When you are considering a nursing home facility, be sure to ask about the staff to resident ratio.

If you or a loved one have been the victim of abuse, negligence or neglect by a nursing home, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

Sunday, July 27, 2008

Fairness in Nursing Home Arbitration Act

Earlier this week the House Judiciary Subcommittee on Commercial Law and Administrative law approved the federal Fairness in Nursing Home Arbitration Act, which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. Consumer advocates including the AARP and the Alzheimer’s Association supported the Act. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs.

Arbitration is an alternative method of dispute resolution that does not require going to court. Instead of a court proceeding, an arbitrator is appointed to hear both sides of the dispute and issue a ruling. The arbitrator considers both federal and state law when resolving the dispute. Advocates of arbitration say it provides a faster resolution and is less expensive for both the nursing home and the resident. Critics of arbitration note that arbitrators are less likely to rule for the plaintiff, and if they do, the awards are generally smaller. Critics also note that since arbitration is confidential, it leads to less accountability on the part of the nursing home, and shields the nursing home owner from the consequences of allowing abuse or neglect to occur.

The Fairness in Nursing Home Arbitration Act (the “Act”) was designed to prevent patients from signing away their right to have a dispute heard in court. The Act recognizes that entering a nursing home can be a stressful event, and often occurs after a patient has experienced a serious or long illness. The patient may also be under medication that impairs their judgment or ability to understand the admission documents. In the State of California, nursing homes are not permitted by law to include an arbitration clause in their contracts for admission of a patient. However, most nursing homes do have an optional arbitration clause provision that they attach to the admission contract as an attachment or addendum. Many patients sign this attachment without fully understanding their rights or that they have waived their right to a trial before a judge or jury.

The Act invalidates any pre-dispute arbitration agreement between a nursing home and resident. Some members of the committee attempted to modify the bill, by trying to ensure that the bill would not be retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected. The committee’s approval of the Act makes it one step closer to becoming law. I will keep you posted on further developments.

If you or a family member is entering a nursing home, read all of the admission documents carefully. If you don’t understand something, don’t sign it until you’ve consulted an attorney. Remember, under California law, they can’t make you sign an arbitration clause as a condition to admission.

Thanks for reading. If you have a question or comment, please feel free to post it here. If you have a question or need assistance with a potential claim against a nursing home or assisted living facility, contact me for a confidential consultation.

Tuesday, June 24, 2008

New Rating System for Nursing Homes

The Centers for Medicare and Medicaid Services (CMS) announced this week the implementation of a new rating system for nursing homes. Nursing homes will soon be rated on a 5-star scale, similar to the way hotels and restaurants are currently rated by critics, with one star being the lowest rating and five stars the highest possible rating. The new system is designed to assist families in determining the best facilities in their area. The new system will appear on Medicare’s “Nursing Home Compare” Web site, hopefully before the end of 2008.

Nursing Home Compare basic staffing information, general findings of inspection reports for the past three years, and a list of quality indicators. Quality indicators include the percentage of residents subject to some form of restraint; percentage of residents with pressure sores; and percentage of residents who have lost too much weight. Some have criticized the current Web site as being difficult to navigate.

The new system is designed to make it easier for consumers to evaluate a home and distinguish one facility’s performance from another. Proponents of the new system believe it will hold nursing homes accountable and force underperforming facilities to improve their standard of care.

CMS is currently holding a period of public comment to determine the best method of translating inspection reports and quality indicators into star ratings and to allow the public to suggest other information that should be included in the ratings. Many hope that the ratings will take into consideration resident satisfaction surveys, which most homes already conduct on an annual basis. Advocates of including these survey results in the ratings state that it is important to give the families of the residents some input in the facility’s rating. The first ratings are expected to be completed by December. Ratings will be updated quarterly.

Regardless of the new rating system, it is important to personally check out a nursing facility. A rating system should not be a substitute for your own observations and best judgment. If you have a comment, feel free to post it here, but keep in mind your posting will not be confidential. If you have a question or need assistance with a matter involving a nursing home or assisted living facility, call my office for immediate assistance. Thanks for reading my blog.

Friday, May 23, 2008

Use of Restraints in California Nursing Home Highest in United States

Federal Nursing Home Reform Act of 1987
Nursing homes that receive Medicare or Medicaid must comply with the Nursing Home Patients Bill of Rights as provided by the Federal Nursing Home Act of 1987. Among these rights is the right to be free from unreasonable restraints. The Federal Code, under 42 CFR 483.13, subsection (a), states that nursing home residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

Nursing Home Restraints Since 1987
The use of restraints in nursing homes has declined overall since the passing of the Federal Nursing Home Reform Act of 1987. Their use decreased almost 40% during the period between 2002 through 2006. According to the Federal Agency for Healthcare Research and Quality, only 5.9% of United States nursing home residents were restrained in 2006 compared to 9.7% in 2002. Some states did better than others. Nursing homes in California were among the worst offenders with 13.4% of residents being repeatedly restrained. Fortunately, not all nursing home in California restrain residents at this rate. Most comply with the Federal Law. However, you may not have much time to find a nursing home for a loved one. You may have as little as 24 hours after a hospital stay to find a good facility. The AARP Magazine has compiled a list of ten essential tips one should follow when choosing a nursing home. To view the list, click the following link:

Potential risk of restraint related injury exists even if you are careful when selecting a home. Be sure to visit your loved one and inspect the facility regularly to make sure things are going well and that your loved one's risks are minimized.

Restraint Injuries
Residents of nursing homes are restrained for different reasons. For example, a resident may be restrained to prevent a fall or to prevent injury. Sometimes residents are restrained to keep them from rolling out of bed or to keep them seated in a chair. Often facilities will use restraints because of staffing shortages, staff inexperience, or just plain laziness. Restraints that have been used by different facilities include belt restraints, vest restraints, mittens, and wrist restraints.

Mechanical restraints such as straps, tie-downs, and bed rails are designed to limit mobility. If they are not used correctly, they can cause strangulation and death. Pressure ulcers (bedsores), incontinence, and confusion can also be caused by the misuse of these restraints. Long term use of mechanical restraints has been known to cause emotional distress, loss of strength, and depression. Nursing homes should never use restraints as a cost-cutting measure. They are not a substitute for the proper number of trained staff. Restraints should only be used if a doctor determines that they are necessary.

If loved one has been unreasonably restrained and has suffered injuries, you should contact a lawyer to protect his or her rights. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

Monday, April 21, 2008

Medi-Cal Benefit Increase for Nursing Homes Fails to Improve Care

In 2004, California legislatures passed a law that provided California nursing homes with $590 million by raising Medi-Cal (California’s Medicaid program) payments. The purpose of this law was to give nursing homes more financial resources to help poor residents. From 2004 through 2006, a UC-San Francisco study found that nursing homes not only received the $590 million, but their total revenues rose by $1.1 billion.

The increase in funding and profits does not appear to have translated into better care. The same UCSF study reports the following statistics in 2006:

1. A 3.6% decrease in nursing home spending on direct patient care

2. A 6% increase in state and federal citations of nursing homes

3. A 38% increase in complaints of patient mistreatment

4. 16% of nursing homes still did not meet California’s minimum staffing levels

5. 88% of nursing homes did not comply with federal regulations

6. 22% of nursing homes had violations that harmed patients or jeopardized patient care

The study also found that nursing assistant wages increased an average of 71 cents per hour (or 6%), licensed nurses increased by 9% and administrators pay rose by 13%. Nursing homes also enjoyed a rise in net profits of 233% to $248,047.

Nursing Home Residents Bill of Rights
The California Health and Safety Code, Section 1771.7(b) provides that all residents in residential living units (such as nursing homes) shall have all of the following rights:

1. To live in an attractive, safe, and well maintained physical environment.

2. To live in an environment that enhances personal dignity, maintains independence, and encourages self-determination.

3. To participate in activities that meet individual physical, intellectual, social, and spiritual needs.

4. To expect effective channels of communication between residents and staff, and between residents and the administration or provider's governing body.

5. To receive a clear and complete written contract that establishes the mutual rights and obligations of the resident and the continuing care retirement community.

6. To maintain and establish ties to the local community.

7. To organize and participate freely in the operation of resident associations.

The increase in funding was meant to help California nursing homes comply with California statutes such as Section 1771.7(b). It appears from the UCSF study that nursing homes have not really improved; while administrator salaries benefitted from the influx of funds, patient care actually became worse. It is important to keep a watchful eye on your loved ones who reside in nursing homes. Be especially on the look-out if the nursing home has difficulty keeping staff. With nursing assistant wage increases not even keeping up with inflation, a high turn-over is likely, leading to poorly trained employees and a high likelihood of neglected patients. If any of the rights listed above has been violated, it is important that you consult an elder law attorney as soon as possible.

Thanks for reading our blog. If you have a question or comment, feel free to respond to this posting, but keep in mind that any response will not be confidential. If you or a loved one is a victim of elder abuse and have questions on how to protect your rights, contact us for a free, confidential consultation.

Tuesday, April 1, 2008

Financial Elder Abuse-Mortgage Scams

Several people in Southern California were recently arrested for mortgage fraud. Many of their victims were elderly people who didn’t realize they were being scammed, and ultimately lost their homes. For many seniors, their primary asset is their home. Seniors are also a likely target for mortgage loan fraud or being defrauded out of title to their property; many seniors have homes which are fully paid for or have substantial equity in their homes.

Help is Available
If you receive a letter from a mortgage company informing you of a mortgage that you never applied for, or if you receive a notice from the County regarding the recording of a deed to your property, call the San Diego City Attorney’s Consumer Hotline at (619) 533-5600 Monday through Friday, 9-11am or 1-3pm.

Points to Consider
Some lenders have violated consumer protection laws by offering loans to seniors that do not fully disclose the costs associated with the loan. Lenders are required by law to disclose all loan costs and payment amounts. If you are considering refinancing your home, be aware of the following:

Don’t be pressured into signing anything until you have had the opportunity to review all the disclosures. Review all fees, payments and closing costs carefully before you sign.

Never sign anything without being fully aware of the consequences of what you’re signing. If in doubt, don’t sign. Have someone you trust review the documents with you.

Don’t give out personal information, such as your social security number, to a loan salesperson. You could be exposing yourself to identity theft.

Don’t take loans out on your house to loan someone else, such as a caretaker, money. If the person doesn’t repay you, you will be placing yourself in financial jeopardy.

Don’t transfer title to your house to someone else without consulting with your attorney first. There may be tax consequences to such a transfer that you didn’t contemplate. Don’t put a caregiver or someone else on title to your home; they may take out loans against your home, and if they fail to make the payments on the loans, you could lose your house in foreclosure.

If you feel you have been the victim of loan fraud, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

Thursday, February 21, 2008

The Worst Nursing Homes

There are approximately 16,400 nursing homes nationwide, and each year American taxpayers spend about $72.5 billion annually to subsidize nursing home care. With the amount of resources devoted to nursing home care, one would hope that patients are receiving quality care. Unfortunately, not all nursing homes are safe. This month the Bush administration released the names of 131 nursing homes that rank among the worst in the nation. The list released by the Centers for Medicare and Medicaid Services (CMS) names facilities identified as a “special focus facility”, meaning the home has a poor inspection record meriting additional governmental oversight. These homes are subject to inspection every six months rather than once a year.

Typical offenses include overmedicating patients or unnecessary medications for elderly patients, and inadequate safeguards for patients with Alzheimer’s or dementia from everyday hazards in the nursing home. While most nursing homes have some deficiencies and may receive six or seven noted deficiencies per inspection, the homes on the list averaged twice as many deficiencies. In order to be placed on the list, the home must show a demonstrated pattern of serious problems for occurring over a prolonged period of time.

The director of the CMS encourages patients and their families to use the list to enhance their awareness of any deficiencies with a facility, but cautions that “there is no substitute for visiting the nursing home in person.” The CMS notes that publicity about a home’s problems often leads to improvements within the facility; out of 54 homes listed as poor performers in a November 2007 study, 21 showed improvement. However, about 16 percent do not improve and are eventually terminated from Medicare and Medicaid. The list will be updated every quarter, with the next list to be made public in April of 2008.

To view the February 2008 list of the worst nursing homes in the nation in pdf format, visit

Monday, January 21, 2008

Planning for Incapacity

When most people contemplate estate planning, their primary concern is what will happen to their estate when they pass away. However, proper estate planning also provides a plan for what will happen if you become incapacitated. If you become physically and /or mentally incapacitated due to an accident, injury or illness, who will manage your financial affairs or make medical decisions on your behalf? If you have your estate plan in order, your estate planning documents will have considered this contingency and will provide a thorough plan for incapacity.

Living Trust: The successor trustee of your living trust will assume the role and duties of the trustee upon your incapacity. Keep in mind, however, that the successor trustee will only have access and control over those assets that are held in the living trust; if you hold assets outside of your living trust, your successor trustee will not have control over those assets.

General Durable Financial Power of Attorney: Even if you have a living trust, and hold all or most of your assets in your trust, you should also have a financial power of attorney which is durable, meaning it is still valid even if you subsequently lose capacity. The power of attorney will authorize the agent named in the document to manage your financial affairs, including transferring assets into your living trust, signing your tax return, negotiating with insurance companies and financial institutions on your behalf, and making other important financial decisions on your behalf.

Advance Health Care Directive: This document allows you to appoint an agent or agents who will make medical decisions on your behalf. This document will also allow you to specify in advance your preferences regarding medical treatment. For example, you could specify that your primary care physician is to be consulted regarding your treatment, or you could specify that you do not want to be kept permanently dependent on life support if you are in a persistent vegetative state.

What happens if you fail to plan, and you become incapacitated? Unfortunately, estate planning attorneys are often contacted after a family member or loved one has already become incapacitated. If the client lacks the legal capacity to create an estate plan, the alternative is to file for a conservatorship. There are two types of conservatorships in California:
  1. Conservatorship of the Person (to authorize the conservator to make medical decisions, arrange housing and care of the conservatee, etc.); and
  2. Conservatorship of the Estate (to authorize the conservator to invest the assets of the conservatee, pay the conservatee’s bills, and handle the conservatee’s finances).
    The same person may serve as conservator of the person and of the estate.

Conservatorships require a formal court proceeding and the court will continue to oversee the administration of the conservatorship for as long as the conservatee is incapacitated, or until the conservatee dies. This process is often criticized as it is costly, time consuming, burdensome and subjects information about the conservatee’s finances and mental and physical condition to public scrutiny. With proper advance planning, a conservatorship may be avoided entirely.

Incapacity due to illness, accident or injury can strike at any time. It is advisable to review your estate planning documents to make sure you are adequately protected in the event of incapacity. If you have any questions, please contact me, or feel free to leave a general response to this posting. Thanks for reading.