Healthcare Decision Rights of a Fiancé or Significant Other Under Pennsylvania Law

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This  post comes as a result of a question posted on Avvo. The question went something like this…”My fiancé of two years had a massive stroke and his family won’t let me see him. We live together and share household expenses we’ve lived in the home for two years. Since his stroke, his children will not allow me to contact with him, but last I saw him I was told by him he was coming home and to take care of the home. There is no POA that I know of. What are my rights?”

Answer:

Whether or not your fiancé has a Power of Attorney is not as important as whether he has an Advance Medical Directive;  the latter document controls health care decisions.

You do in fact have rights, but having your rights recognized may involve the cost and time of filing a petition in court. It is possible that your fiancé’s health care facility is not aware of the hierarchy of individuals who may step in as a “Health Care Representative” and you should talk to them first.

Section 5461 of Title 20 of Pennsylvania law explains the hierarchy. Although a spouse, children, sibling or grandchildren would normally have precedence over an unrelated individual, Section 5461(e) states that “… Upon the petition of any member of the classes set forth in subsection (d) of the law, the court may disqualify for cause shown, an individual otherwise eligible to serve as a health care representative.”

Section 5461(d)(vi) would make you an eligible candidate to be the health care representative. That section states that a “Health Care Representative” may be “An adult who has knowledge

Philadelphia Court Quickly Ends Senior Snatching

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A few weeks ago, Wynnewood PA geriatric care manager, Mimsye Katz posted in her Linkedin feed about an article appearing in the New York Post and New York Times. It explained how “Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it.”  [click the link to the full article]. Shortly thereafter, the article was also cited and discussed in an ABA-sponsored user group of solo practitioner attorneys. The consensus of the Pennsylvania lawyers who participated in the discussion was that it might happen in other states, but it could never in Pennsylvania.

The next day, reading up on Pennsylvania cases, I saw the case of  Estate of Phillips, Court of Common Pleas of Philadelphia, decided on Aug 28, 2017 (PICS Case 17-1419). Apparently, the Philadelphia Corporation on Aging tried to invoke a guardianship on an unwilling senior who already had people caring for her under her Power of Attorney. The court, in its decision, said…”Where a petitioner for guardianship relied on hearsay evidence, the family of the respondent was providing her with care, and the respondent herself testified lucidly about not wanting or needing a guardianship, the court properly denied the petition for guardianship brought by Philadelphia Corporation of Aging.” It seems that the witnesses brought by PCA relied on hearsay about Ms. Phillips medical condition, but never obtained or reviewed her medical records. Based on Ms. Phillips detailed testimony and her family’s willingness to care for her, the court held the petition for guardianship brought by Philadelphia Corporation of Aging should be denied.

I recognize that some of my readers may have been involved in that case and that courts sometimes report an opinion in a way that makes them look good. If any readers have additional information about the case, please add it in the comment section.

Assuming the worse, is there any way to prevent something like this? We draft plenty of Power of Attorney forms in our office, and we always suggest that the agent keep a copybook or journal listing all of the events and tasks performed for the senior. This way, if any outside agency or third party makes an accusation that the agent is neglecting or stealing from the senior, there is some proof and documentation of what they did. Any agent acting under a Power of Attorney for a senior may want to follow suit, so they are not “fired” and replaced by a guardian.

I intend this to be a conversation, so if you have anything to add, please comment below!

Bob Gasparro,Esq.

 

 

Thanksgiving is the Time to Share your End of Life Decisions

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Be careful how you do this… Last Thanksgiving I was sitting in the living room after dinner and watching the football game, when I said to my family… “I never want to live in a vegetative state, dependent on some machine and fluids from a bottle. If that ever happens, just pull the plug.” My grandson got up, unplugged the TV, and threw out my beer.

On the other hand, this week is the perfect time to bring up the topic of Advance Medical Directives. If you’ve had your Medicare-sponsored “End of Life” discussion with your doctor then explain your choices to your family.

Unfortunately, a recent study revealed that most hospice workers and other folks do not have an Advance Medical Directive. Now it the time to draft it! I can refer you to three sites that can help you prepare the document:

First, the Five Wishes form offered by the “Aging with Dignity Foundation” is very popular and can be found here.

Second is the Pennsylvania Allegheny Bar Association which offers a free form, which can be found here:

Third, and I am partial toward this, is my firm’s video and form. The form we use is the one contained within the statute itself, and is nearly identical to the Allegheny Bar Association form, and has withstood the test of time. But in addition to that, we provide about an hour of video instruction for the principal, for the agent who must act for the person who drafted the form, and for any health care or hospice worker who must act according to the form. We tell them what their rights and duties are under the document. This course has already been presented to accountants and investment advisors and to attendees at senior centers. The price is $15. and it can be found here.

Many studies have been conducted about why people do not complete these forms. The primary reason is “never got around to it.” So why not get around to it this week?

Stay well until the next post.

Bob Gasparro

 

Pennsylvania Celebrates “Home Care Aide Week” November 12th through November 18th

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Pennsylvania has designated this week as “Home Care Aide Week” in appreciation of the part-time and full-time caregivers who provide assistive and personal in-home care. The Resolution –  No. 587 of 2017 – is reproduced below.

The Bill’s sponsors were Representatives Bullock, Neilson, Toohil, Davis, J. Harris, Bizzarro, Jozwiak, Hennessey, Prickett, Dean, Thomas, Ward, Murt, Longietti, Driscoss, Ryan, Pashinski, Burns, DiGirolamo, Kensey, Sainato, Millard, Kortz, Everett, Caltagirone, V. Brown, Donatucci, Marsico, Roebuck and M. Quinn.

The Resolution reads…

WHEREAS, Millions of Americans of all ages need some form of daily assistance to live at home; and

WHEREAS, Long-term nursing home care is generally more expensive than in-home care; and

WHEREAS, For-profit home care companies, third-party agencies and private individuals employ home care aides to assist elderly persons, convalescents and persons with disabilities who need help with activities of daily living; and

WHEREAS, Home care aides work with nurses, therapists, social workers and family members as part of the home care and hospice community; and

WHEREAS, Home care aides work closely with family members to coordinate care; and

WHEREAS, Their work includes observing, recording and reporting physical and mental changes in a client’s condition;

and

WHEREAS, According to the Bureau of Labor Statistics, home care aide is among the top 10 occupations with the largest job growth; and

WHEREAS, The National Association for Home Care & Hospice is a nonprofit professional association representing home care and hospice providers and advocating for the interests of persons who are chronically ill, disabled or dying; and

WHEREAS, The home care industry reduces hospital readmissions and ensures that vulnerable individuals have access to a range of services; and

WHEREAS, The House of Representatives honors the technical and interpersonal skills required to meet the demands of bringing home-based care to patients and families in communities throughout this Commonwealth and across the nation; therefore be it

RESOLVED, That the House of Representatives designate the week of November 12 through 18, 2017, as “Home Care Aide Week” in Pennsylvania in appreciation of those part-time and full-time caregivers who provide assistive and personal in-home care.

Stay well until the next post…

Bob Gasparro, Esq.- Senior News and Resources

Call to Action to Preserve the Medical Expense Tax Deduction

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The National Academy of Elder Attorneys is working with AARP and a few other organizations to prevent the proposed elimination of the medical expense deduction in the new tax bill before Congress.

Unlike other deductions, there is no organized group designed to protect the medical expense deduction (e.g. realtors always organize to protect the home mortgage interest deduction).

I am also an accountant and I sometimes helped other accountants prepare tax returns during “tax season.” I personally know that then they raised the threshold for the medical deduction from 3% to 10% of AGI, they cut off nearly everyone except those who had a catastrophic medical emergency.

While this deduction doesn’t affect lawyers in any way, the medical expense deduction affects many on this list who provide LTC and services for seniors or the disabled.

For the full story from National Academy of Elder Law Attorneys, follow this link.

Bob Gasparro, Esq.