Elder Mediation Helps Families

A recent article in the New York Times (click HERE for full story) tells the story of a family who got help from an Elder Mediator with a distressing family situation.

An elderly client was calling her caregiver in the middle of the night and making unreasonable demands.  The caregiver was close to quitting her job.  At a family meeting facilitated by attorney and elder mediator Joy Rosenthal, the family discussed the issues and needs of various people affected, including the elderly person and the caregiver.  Then, the group came up with a list of things they could to to make the situation more manageable for everyone.

There are a couple of things I love about this story.

For one thing, it makes it clear that Elder Mediation is helpful in many cases that would not call for court action.  The issue of calling a caregiver in the middle of the night was not the type of thing that people go to court for.   Yes, it is true:  mediation is appropriate for situations involving very serious issues that could legitimately be taken to court.  But mediation is not limited to these types of situations.  It can be helpful at every level of conflict.  Indeed, the earlier a family calls in a mediator, the better.

When the family calls a mediator at the first sign of distress, the mediator can intervene before the family has become polarized and estranged from one another.   (In cases where family appears headed for court, early intervention by a mediator may save not only relationships but tens of thousands of dollars in legal fees and court costs.)  Additonally, mediation enables families to consider options that would never be available in a court of law.  In this case, the family was able to intervene before the caregiver quit, and mediation enabled them to work together to forge a creative, win-win solution.  The result?  The elderly client was happier, everyone had a better understanding of each other, the caregiver was able to to keep her job and work more reasonable hours, and the elderly client was able to retain a trusted employee.   Even more important, the air was cleared, people understood each other better, and a better foundation was laid for future decision making.

Another thing I like about the story is the simplicity of the solution and the way the solution met the true needs of all the parties.  (To learn the exact problem and solution, read the story!)   As this story illustrates, sometimes the solution is very simple, and all it takes  is to talk it through.

As simple as the solution sounds, however, I’m certain it was worthwhile to engage the mediator.   A qualified elder mediator isn't just a person who has decided to act as a middle man and "keep the peace".  A mediator, if properly qualified as an Elder Mediator, is a seasoned professional with advanced training not only in basic mediation skills, but also in mediation of large and complex family issues, and they will have specific training or expertise in elder and geriatric issues.    The mediator will know how to set the stage and manage a meeting in such a way as to ensure that all family members are heard and all interests are on the table before  options or solutions are considered to address those needs.  The integrity of the mediation process is what ensures that once a solution is in place, it is a good solution that does meet all needs, and not just a knee-jerk, slap-a-bandage reaction.   Indeed, that is one of the best values that mediation offers.    By going through the steps in a methodical way, as led by a expert in conflict management, families who choose mediation actually address root causes.  Conflict addressed in this way offers opportunity for families to develop better systems of communicating and making decisions, and thereby have the opportunity to achieve authentic healing and reconciliation.    It's virtually  a no-lose proposition.

To find a mediator in your area, search through mediators listed on the web site Mediate.com, or search specifically for an elder mediator on the site ElderCareMediators.com  .   I've also written a guide to choosing an elder mediator, which can be accessed HERE.

[caption id="attachment_475" align="alignright" width="300" caption="The author with her grandmother"][/caption]

(My own background that prepares me as an Elder Mediator includes approximately 160 hours of study of mediation techniques (including specific study with Zena Zumeta and Susan Butterwick in mediation of Elder issues and contested guardianship cases and study with Richard Blackburn in conflict transformation in large group settings), personal study in elder law, personal experience in elder care management, and graduate level study in medical ethics.  I am a member of the Elder Decisions section of the Association of Conflict Resolution, and I am listed on both of the above sites in the field of Elder Mediation.)

Another Type of "Plan B"

The New York Times this month ran an excellent article, that I recommend reading: "Overlooking the Frail Years".  This insightful piece highlights something people really need to know.:  EVERYONE needs to have a Durable Power of Attorney for Health Care and also a Durable Power of Attorney designating a General Agent who can run their affairs if they are incapacitated. 

The legal detail about Powers of Attorney is beyond the scope of this blog post.  The purpose of this post is to tell you that, even though these Powers of Attorney are some serious documents that no one should take lightly, you need to overcome whatever psychological barriers prevent you from thinking of these things, and get it done:  Everyone needs these documents in place as a "Plan B" in case fate throws its worst your way.* 

There's no need to be morbid.  Use of these things is not always a matter of high drama or life and death.  Here's an example.  I got a phone call one time from a man who had been ill for an extended period of time.  He needed advice about how to get his car back.

Get your car back? 

Yep. 

While he was in the hospital and then recovering in a rehab facility, no one made his car payment for him.  So, when he was discharged from the hospital, the first thing he learned was that his car had been repossessed.  It wasn't repossessed because he didn't have the money.  The money was sitting right there in his bank account.  The problem was, he had not given anyone legal authority to access his bank account or to pay his bills while he was incapacitated. 

The process of getting the car back was not "life and death" or "dire" or even an "emergency", but it sure was a pain in the you-know-what!  This man had to put up with the grumps at the collection agency, experienced some embarrassment in his small community, and had to pay a couple hundred dollars from his fixed income to bail out his car  (a taxi ride to the lot where the car was being held, towing and impoundment fees, and various late fees).  That's not to mention trying to fix his credit report. 

Does this sound like something you'd want to be faced with the moment YOU get out of the hospital?  Because unless you have a Durable Power of Attorney, you are not immune.  The bottom line is that everybody needs to have designated a somebody who will have authority to manage their affairs if it ever  happens that they're incapacitated.   

You may answer, "It won't happen to me."  Well, that's B.S.!   It can happen to anybody, whether you want it to or not.  You don't control whether some idiot runs the red light and crashes into your car.  The N.Y. Times article says that 2/3 of us eventually need this kind of help. 

You may answer, "I already have a Power of Attorney."  Well, that's fine. But you'd better check to make sure it's a Durable Power of Attorney.  Unless it's Durable in form, it likely expires the moment you are incapacitated, just the time when you need it.  Just today, someone told me of a family who thought their loved one had executed a Durable Power of Attorney; but when they went to exercise it, they found out that it wasn't durable.  That means the family will have to go to court in order to get authority to pay the parent's bills for them. 

You may answer, "Well, my son is on my bank account."  Well, that's fine so long as you understand that you may have just given your son the right to spend everything in your bank account on a new red corvette, if that's what he wants to do with the money.  And that if you die, he'll be entitled to all of it and won't have to share a dime of it with your daughter. 

Perhaps you're worried that someone may use these documents to pull you off of life support or to steal all of your money.  Well, these are the type of documents that you do, indeed, need to careful whose hands you put them in.  It is a big decision whom to trust with such power in your life.  You wouldn't want your worst enemy to be the person designated as your proxy under your Health Care Power of Attorney, and you wouldn't want convicted bank robber Davey "Sticky Fingers" Jones to be designated to manage your money.   However, there are a few protections. 

First of all, you control who you designate.  You will not necessarily appoint your first born son, if that person is not the best person to do the job.  What matters most for the general agency is that it be someone who can is willing and trustworthy to perform the duties, who will act rationally, who will account for the money, who will act in your best interest, and who will not steal from you.  The most important thing you can do is to choose this person wisely according to their ability to assume responsibility, not according to birth order or some other prejudice.  You may decide that the best person for this job is your second-from-the-youngest daughter or even your friend Susie the bookkeeper.   

A second limiting factor for the Power of Attorney is that these documents are, as a practical matter, only used in limited circumstances.  If you are able to make decisions on your own behalf, then you make those decisions yourself, then and there.  If you can pay your own bills, you don't need someone else to do it for you.  If you can decide whether or not you want a surgery, you don't need someone else to make that decision for you.  Nope, these documents are there only for the times when you can't take care of your own affairs.  For example, when you can't pay bills on your own, or when you are unconscious and someone has to decide whether you'd want x surgery or to be put on a ventilator (or not).  Don't appoint someone who will not respect these boundaries. 

As for Health Care Powers of Attorney, I won't repeat what I've already said in blog posts HERE (on Just Mediation blog) and HERE (on Peaceworks blog) about how important those are.  What matters most for the health care is that it be someone you can talk with about what you think you would want, what your values are.  That person should also be someone who will be there in the hospital to talk to the staff.  And they should be someone you would trust to do what you would want (not necessarily what they would decide for themselves).  Your closest friends and family are the most obvious place to look for people who would do this for you, but if there are people you would trust more, you should seriously consider naming the person you think will do the best job. 

If you do name people who would be a surprise to those who would expect to do it, however, do your family the favor of talking with them about your decisions.  You don't have to say, "I chose Jane Doe because my son Tom Smith is such an irresponsible jerk."  It's sufficient for you to tell Tom and all of your other family, "I chose Jane Doe because ___," and name the positive reasons that favor Jane.  Give your family an opportunity to voice any concerns they may have about Jane, and listen carefully to those concerns.  If Jane has been your best friend for 40 years, that's one thing.  If you met Jane last week in a Playboy Bunny Club, your family may have valid reason for concern. 

The bottom line is, work through all these issues and TAKE CARE OF BUSINESS.  Get it done!   

Okay, well, (drum roll) ...

I have both a Health Care Power of Attorney and a Durable Power of Attorney.  Do you?! 

(drum roll)  

Do you?!

If not, GET THEM! 

_______________________________________

*And now here's the disclaimer, and it's an important one:  I am not your lawyer; you are not my client; and this blog does not give specific legal advice!  Since every state and every nation has its own laws, what may be true in my state may not be true in your state or country.   I've told you my personal opinion:  you're an idiot if you don't make a contingency plan for disability. But in terms of exactly what to do, I'll leave it at telling you one thing:  Make sure you talk with your attorney about what documents you need, then take the time and effort to do whatever your lawyer recommends.   

Fundraiser for My Dad's Nursing Home

November 12, 2009

UPDATE:  THANK YOU SO MUCH, WE WON!!! 

 

Thanks to your clicks, the nonprofit nursing home that cares for my father will receive approximately $50,000 in corporate donations!  And just to clarify, my stepmother does NOT KEEP THE CAR!  This fundraiser was a method of advertising by Cadillac, but no, they are not giving away the cars!  She just got to use it for a week and write about it. 

 

 

November 4, 2009

My dad has a debilitating illness called Multiple System Atrophy.  It is a terrible illness.  In a very short period of time, he has gone from being the picture of health to a person who cannot manage basic functions of life.  Sadly, he can no longer be cared for at home.  He now resides in a skilled nursing center called The Pines of Sarasota, located in Sarasota, Florida.

The Pines gives very high quality care, but that care is expensive.  The Pines continues to care for people even after they have exhausted their resources.  It is also a nonprofit, and so it depends on private fundraising efforts to make up the difference between what people can pay and what they give. 

My dad's wife, Marjorie, has a great opportunity to raise money for The Pines, but it depends on her getting clicks on an internet site.  Cadillac has agreed to let her use a brand new Cadillac SRX for a week.  She must write about the car on a blog, and the company will donate money based on how many clicks her blog receives.  Can you help with this fundraising effort by clicking on her site, HERE? 

Please read her story, below, then click on the link she gives.  Please click often in the next few days!  You will be treated to photos of Marjorie's life as she and her dog, Bentley, enjoy the SRX!  If you're lucky, you may even be treated to photos of my beautiful sister Nicole and her baby, as well! 

2010 Cadillac SRX

Click HERE Please bookmark and click often this week!!!

Here is a photo of my Dad and Marjorie, taken about three years ago, before this illness struck.  He and Marjorie love their dogs.  The white dog in this photo is named Bentley, and he's still an inseparable companion.  Bentley can't live with my Dad at the Pines, but he visits often, and he rides in the car with Marjorie.  For this fundraiser, Marjorie is planning to write about her adventures in the SRX with Bentley along for the ride! 

Marjorie writes: 

Hello All,

I have been given use of a 2010 Cadillac SRX for a week. The only “string” attached is that I blog about the SRX and my activities using it each day. I’m competing with seven other women in this region of Florida. Whoever gets the most clicks on their blog will win all the proceeds to benefit their charity.

I hope that you’ll find my blog to be interesting and that you’ll click on it frequently throughout the next few days to see what I’m up to, and to help me win the funds for my charity!

The charity I’ve chosen is The Pines of Sarasota. There is a very personal story behind my choice of The Pines.

My husband, Bill, has a catastrophic illness. After more than a year of home care, he now lives at The Pines.  The Pines is a 61-year-old not for profit nursing center. It is home to several hundred folks who need rehabilitation and skilled nursing care. I have recently been elected to the corporate board of the Pines. I am donating (with your help) 100% of the charitable donation to them.

Our family can vouch for the top quality and compassionate care provided to all Pines residents regardless of ability to pay, including residents who have outlived their financial resources.

There are several matching donors.  Thus, a lot is “riding” on your taking the time to see where the SRX and I are and what we are doing. Please, click often on the link http://www.srxdrivingforce.com/influencers/influencer.php?cn=mbroughton 

The more clicks, the more chance we have of winning the competition and helping The Pines! 

Thank you in advance for your support!

Technorati Tags: srx,cadillac,cadillac srx,The Pines

Focus on Elder Mediation

14 September 2009

Elder Mediation creates a safe space for dialogue about challenging issues that come with changing circumstances in life. Each family’s needs are different. Issues involved in Elder Mediation may include:

• Estate Planning & Trust Arrangements,
• Housing & Living Arrangements,
• Care giving & Health Care Planning,
• Financial Management & Consumer Issues,
• Guardianship & Conservatorship Issues,
• Decisions about inheritance, and
• Settlement of Estates when heirs disagree.

Any person may suggest a mediaton, and the Elder is involved in the mediation to the fullest extent possible.  Mediation strives to preserve the autonomy, independence, and dignity of the Elder while accommodating practical and financial needs including care giving and safety.  

Ideally, a family will call in a mediator to facilitate discussion before a crisis occurs. This will ensure that thoughtful well-considered strategies for dealing with life transitions are put in place at a time when many options are still open.  When done early in the process, planning can be proactive rather than reactive.

A mediator is often called in after a crisis has occurred.  When faced with a crisis, the Elder and different members of the family may individually come up with different answers to the question, “What’s next?”  Big decisions must be made on short time frames and with limited information.  This is fine. The mediator is a professional.  Elder mediators do not make decisions for families, but they can point families to resources and facilitate the process of decision making.  In this way, they help families manage conflict peacefully. 

Elder mediators are aware of the stresses and challenges posed by aging family members. Caregiver burnout and inheritance issues are common in families. The conversations that are required to deal with these issues are difficult ones. Health, financial and care giving concerns are serious issues, demanding that all family members weigh in with their views. The answers to how problems will be addressed often, as well, depend on very personal values. The challenges of aging, and of caring for an aging parent, will require various family members to draw on resources, sometime on sheer inner strength, that they didn’t even realize they had.

Regardless of the context or timing, Elder Mediation builds up families by helping them come to agreement and face these challenges in a unified, cohesive manner. In this way, mediation may actually heal fractured relationships and restore family unity. At a minimum, Elder Mediation offers the promise of helping families come up with agreements that everyone can live with, even if no solution seems 100% perfect.

The mediator is not a “counselor,” but neither do most families desire “therapy”. They just need help working out a solution that everyone can live with. A mediator guides family meetings, sets ground rules and referees the conversation so that difficult topics can be discussed in a neutral and safe environment. This setting enables families to overcome the emotional hurdles preventing healthy communication.

 

 

A mediation done in this way often takes the form of a family meeting, led by the mediator in such a way as to create the space for everyone in the family to be heard on an important developing family transition. Conflict addressed in this way may be dealt with in a healthy way, before hard feelings or grievances have a chance to fester or polarize the parties.

As family members seek fair ways of sharing the burdens and resources of the family, their individual perceptions and personal feelings are important. Using Elder Mediation to address tensions may avoid the feeling (or actuality) of exclusion of family members. It also avoids having the entire burden of care, or of decision making, fall on one person, whether that person is the Elder themselves, a spouse, or one particular child. Securing adequate assistance from a unified family may actually prevent abusive or neglectful behavior by overwhelmed caregivers.  

Families on the journey toward planning for old age may find themselves not only in territory they aren’t familiar with (estate planning, trusts, advance care directives, home health care, assisted living choices, etc.) but also they may find that when siblings and adult parents must come together to face these issues, they may come face to face with feelings from their past that bubble up and make clear thinking difficult.

Unresolved tensions that may have simmered below the surface can resurface and make family conversations very difficult. Siblings who have lived apart for many years may have developed differences in their own geographic, economic and immediate family structures. As a result of these challenges, they may find it challenging to work together. Angry words may be spoken, and thoughtful decision making can seem all but impossible. 

Even when the angry words are not spoken, an appearance of “peace” may not be truly peaceful at all.  Underneath the still waters, there may be a turbulent bed of emotions.  Mediation seeks to help parties find an authentic peace, not a faked one. 

In conclusion, mediators with specialized knowledge in areas related to estates, financial planning, physical care, mental and emotional needs, and community resources, can help facilitate family discussions about matters relating to safety, finances and capabilities while keeping in mind the senior’s desire for individual control and respect.  If you are interested in talking with me about any issue that may be resolved through mediation, take a look at my mediation web site, HERE.

 

Technorati Tags: elder mediation,elder law,south carolina

Long Term Care and Medicaid

An article in today's New York Times tells the story of a woman who was prompted to divorce her ailing husband in order to keep from being bankrupted by his anticipated medical and long term care costs. 

Op-Ed Columnist

Until Medical Bills Do Us Part

By NICHOLAS D. KRISTOF

Published: August 30, 2009

Click HERE for story

 

Most people understand that long term care is incredibly expensive, but I don't think they realize just how expensive.  Think in terms of a general range of $60,000 - $100,000 per year, depending on location and services.  In 2008, the average cost for a private room in a nursing home was $76,285, and I use that number because the semi-private rate is not much less.  That's in today's dollars, not adjusted for inflation which will have occurred by the time you need the services. 

People also need to understand that Medicare does NOT pay the cost of long term care.  Let me repeat that: Medicare does not cover the cost of nursing home care.   In 2005, Americans paid $206 Billion for long term care, and amount that does not include any services provided by people who were unpaid such as family members.  

At the present time, Medicare (remember Medicare is not the same as Medicaid) will pay for a lifetime maximum of 100 days of rehabilitative stay in a long term care facility, with three key restrictions.  First, there's a copay of $133.50 per day.  Second, the placement must come after a hospital stay.  Not coming out of a hospital?  Then forget any reimbursement whatsoever from Medicare for in-patient therapy.  Third, the care must be rehabilitative in nature rather than merely care taking.  Not really a candidate for rehab?  Then too bad, so sad.  And after 100 days?  That's the end.  Medicare ain't gonna help you with any other long term care costs. 

Overall, 75% of Americans will need long term care in the future.  There are four ways to pay for costs of that care.  They are (1) out of pocket, (2) long term care insurance, (3) reverse mortgages, and (4) Medicaid. 

Over and over, I hear people using the term "Medicare" when what they really mean is "Medicaid".  Medicaid will pay a limited amount for long term care.  But indivuals are usually sadly misinformed about Medicaid, as well.  They generally have no idea what the real benefits and restrictions are for Medicaid, or what you have to do to qualify for Medicaid. 

To qualify for Medicaid, a person must spend down his or her own assets to poverty level.   And, fundamentally (this is only a broad brush summary), current Medicaid regulations do not allow the surviving spouse to keep enough assets to take care of themselves in their own old age.  This NY Times story tells of a woman who divorced her husband for the purpose of shielding enough assets to care for herself during her own lifetime. 

It is good that the story also mentions the (very important) Five-Year Lookback Rule.  Knowing that people will go to extreme measures to deliberately impoverish themselves in order to qualify for Medicaid, state Medicaid programs will examine all transactions you have undertaken in the last five years prior to your Medicaid application.  If the Medicaid auditors determine that a transaction was done for the purpose of qualifying for Medicaid, they will go after the asset so that it can be sold and proceeds used to reimburse the government for the cost of benefits it paid on your behalf. 

There are special trusts and things that can be done by legal specialists, but the bottom line is that if someone is trying to plan ahead to make themselves eligible for Medicaid, then it is extremely important that they  not wait until there is a need, and especially not until there is a crisis.  Better to do it now, before there is a need even on the horizon. 

You heard me right.  Exactly!  The time to think about this is NOW, when you are healthy and do not have any current need at all.  No matter what your age or health status -- even if you are 20 years old and in perfect health -- make an appointment today with your lawyer to discuss what documents you need to have in place so that your family will not be left destitute in case of a "worst case scenario".

MAKE THAT PHONE CALL!

I must add the disclaimer that this blog is for information only, is not intended to give legal advice or create an attorney client relationship, and it should not be relied on for legal or estate planning.  Consult the lawyer of your choice to learn current laws and to discuss your individual needs. 

Technorati Tags: medicare,medicaid,five year lookback rule,lookback,medicaid lookback,rehab

Mediation for Elders and Their Families

28 August 2009

I like this blog post on Southern Cross, Inc: What is an Elder Care Mediator . It neatly distills a lot of the issues and challenges facing Elders as they confront the inevitable realities of aging. Elder care management is a complex, confusing maze of big, life changing decisions, and most people only navigate the waters a handful of times in a lifetime (e.g. mom, dad, self). An expert in elder care is familiar with the issues and can suggest positive ways to address them. Though I think I view the role of mediator as separate and distinct from that of care manager, I also completely concur with the value of a mediator to help families navigate these waters. Roles shift, many interests must be balanced, decisions are big and life changing. Previously unnoticed family dynamics may suddenly cause disharmony. Mediation offers the possibility of working through all the issues in a positive, safe environment. It may even strengthen family relationships through the process of building teamwork and positive ways of responding to challenges as elders navigate these deep and sometimes turbulent waters.