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Last Will and Testament Recently, at two different MCLE (continuing legal education) presentations, I spoke on the “Elder Law Essentials.”  The goal of the presentation was to distinguish the solutions of elder law vs. the solutions underlying traditional estate planning. I was originally trained as a tax attorney, and my principal estate planning solutions were motivated by the client’s desires to:
  • Minimize or avoid estate & gift tax costs; and
  • Minimize or avoid probate expenses; and
  • Minimize problems at the time of ultimate distribution to heirs/beneficiaries.
As an elder law attorney, however, the usual client motivation is the diagnosis of a long term illness.  This is illustrated by the life-changing call I received at my office almost ten years ago.  A family friend called me and she asked, “Rick, what are we going to do?  Bob has been diagnosed with Alzheimer’s disease.  Am I going to lose my home?  Are we going to lose EVERYTHING?”  There was panic in her voice. In those days, I was not prepared to give appropriate answers.  I was a traditional estate planner—and she was not asking for a traditional solution.  She was asking me for answers to these questions:
  • How are we going to maintain sufficient income?
  • How are we going to pay for Bob’s health care needs?
  • Will I ( the healthy spouse) be forced  move out of my home by health care expenses?
When someone asks these type of questions, elder law has the answers.  Our goal is to work with our clients to try to assist them to protect their income, obtain quality health care, and protect the marital residence for the healthy spouse. If a traditional estate plan is not the right fit, please call us to discuss how we may be able to help you. Rick Law

womans-nightmare He looked into his wife’s eyes and flatly stated, “I’ll put a gun to my head before I ever go to a nursing home.”  But the sad truth is this:  His wife will be the one to bear the burden caused by his long term care needs and her own aging challenges. This couple are frugal people who worked hard all their lives.  They lived on two Social Security checks, his modest pension, and minimal investments.  They were able to pay their bills and enjoy simple luxuries—until the out-of-pocket expenses of long term care begin to drain what they worked a lifetime to save. His wife selflessly provides in-home care for her beloved husband, until eventually the day comes when her strength is not enough to pick him up or keep him from wandering away from home.  On that day, it might be a doctor, a discharge planner, or a policeman who looks into her eyes and speaks the harsh truth to her: “I’m sorry, ma’am. You can’t take care of him by yourself any more.” This poor woman now faces a nightmare as she walks the elder care journey with a frail and declining husband.  First she learns that neither Medicare nor their health insurance provide any payment for home health care costs.  Later, when her husband must be relocated to a long term care facility, she discovers that neither Medicare nor Medicare supplemental insurance will pay the facility’s $3,000 to $8,000 monthly cost. Quickly, she also learns that Medicaid is not available because she has “too much money.”   Her husband’s care will be offset by Medicaid only if she and her husband meet stringent income and asset limitations.  If they have assets over approximately $101,000, they must “spend down” their life savings, which Medicaid defines as “excess assets.”  When all excess assets have been spent on her husband’s medical care, then Medicaid will also control her monthly income.  She is restricted to $2,500 per month; any income above that must be used to pay for her husband’s care. Later, when her husband dies, she receives more bad news.  She loses his pension, and as the “survivor spouse” she loses one of their two Social Security checks.  She has spent nearly all of their assets to provide for her husband’s care, and now she can’t even afford to live in her own home.  The nightmare of long-term care has left her impoverished and stolen her independence. She will now face her own elder care journey alone.  She will not have the luxury of a spouse who will serve her as she served him.  No one will be there to dutifully care for her at home and to delay the day that she must move to a long term care facility.  She will not have the financial resources that he had, because Medicaid called them “excess liquid assets” and she spent those assets on his care.  As a single person, she will not be provided with assistance by the State of Illinois or the federal government until she has become impoverished to the point of a paltry $2,000 or less in total assets. The indignity committed against her does not stop there, for now she must sign over all her income to the nursing home as well, except for a miserly “personal needs allowance” of $30 per month. The loving wife who faithfully cared for her husband is now out of money and out of options.  $30 per month will not even give her the privilege of having her hair done.  She is alone—and living the nightmare of long term care in America.

Our Law Elder Law motto is “Serving Seniors and Those Who Love Them.”  Jo Buscemi, niece of Raffaella Calabrese (more affectionately known as “Auntie Florence”), shared these words with me and asked me to share them with you: Dear Mr. Law, Around October 2008 my mother and I had our first meeting with Mr. Jonathan Johnson in regards to my Aunt Raffaella Calabrese (“Auntie Florence”).  My aunt had suffered for years with dementia and had various (six in all) live-in caregivers.  I was told by many to keep my aunt in familiar surroundings for as long as possible and I being her power of attorney, I did exactly that. I came to your Aurora office one day and had our initial meeting with Jonathan.  I was very apprehensive.  Norridge HealthCare Facility recommended that I talk with you folks.  Well, after our second meeting with Jonathan and many phone calls and questions, we returned in about November of 2008 and contracted with your firm for assistance.  I put off as long as I possibly could placing Auntie in a nursing home, and then only because our sixth caregiver was returning to Poland and Auntie had exhausted all her life’s savings in addition to what I paid for from my savings.  I have MS (Multiple Sclerosis) and it was difficult to care for my aunt and mom, so I had to quit my job two years ago.  But this letter is not about me—it is about my Auntie Florence. Auntie went to live at Norridge HealthCare Facility on June 18, 2009 and sadly, she passed away on February 9, 2010.  We were very satisfied with this facility and its staff.  During this time I was assigned to Gina Salamone as our attorney at Law Elder Law.  I know I drove Gina and Sean (and everyone who answered the phone) nuts with all my calls and my frantic questions and nervousness.  I do believe Gina and I have a bond, though, and I trusted her with my precious family member and for that I am very grateful to her. I have recommended people to your firm and I have even gone as far as handing out Jonathan’s and Gina’s phone numbers—and advised these people to get all their ducks in a row now rather than wait. I have attached a picture of Auntie Florence and I wish you to express my family’s sincere appreciation for all the thousand times I called, ranted, cried, and went nuts—but your staff never gave up, not once.  Gina even went to the DHS regional manager on our behalf. Mr. Law, I really appreciate everything your entire staff did for Auntie, and I promise you I will always recommend people who need this type of help to your firm.  God bless everyone at Law Elder Law in Aurora, Illinois.  Thank you all again on behalf of Auntie Florence and the Buscemi family—we truly thank you.   Please enjoy the catered lunch on Thursday that my family is having delivered to your office. Jo Buscemi

Many of our elder law clients live at Countryside Care Center in Aurora, Illinois. We hear from our clients and their families that great care is provided for both private pay and Medicaid clients. When we are asked by families to recommend a skilled care facility, we often say, “Choose the care, not the curtains!”  In other words, investigate what it’s like to live in a facility—don’t just judge the place by the décor and the architecture. Recently, I had the pleasure of taking a tour of Countryside Care Center to get to know the staff better.  Jean Bennett, Marketing Manager, greeted me and introduced me to Anthony Clark, R.N., Clinical Nurse Manager and Physician Liaison (pictured on the left in the photo above).  After telling me some of his favorite lawyer jokes, he showed me a whole new way to think about long-term care nursing. Q:    Anthony, why do you serve here at Countryside? A:    I had wanted to get an operating room position, but due to circumstances, I decided to apply here.  Actually, an operating room job can be easier, because you never get attached to the patients—and most of the time… you win!—the patient gets well.  But in a nursing home facility, you experience just the opposite.  You spend long periods of time building relationships with people, and then you face the reality of their inevitable death.  You have to learn how to deal with your grief. That’s one of the real challenges of being a part of a long term care setting.  Ultimately, you will lose someone you care about.  I try to focus on providing our residents with comfort, care, and friendship.  I have a lot of friends who live here. Q:    How do you and your staff find job satisfaction working in the nursing home at Countryside? A:    One of the greatest things we have here at Countryside is our Reminiscence Boulevard; that’s our memory enrichment wing.  Our staff go out of their way to love and care for our residents.  They smile, joke, sing, and dance together.  The staff on the Boulevard take pride in what they do.  They do their work well, and the residents and the residents’ families come to trust each one of them. Q:    What is one of the big reasons that you chose to work at Countryside? A:    Formerly, I did work in a fancy and totally remodeled short-term rehabilitation center.  Before the new construction, it had been an older, smaller facility.  The nursing team had been able to provide the highest quality of care.  But, after the reconstruction, we had a state-of-the-art building in which it was physically impossible for us to safely serve our residents.  Here, we can see all of the rooms from either end of the hallway. Q:    What is a special point of pride for you? A:    The staff must be emotionally up each time they come through the door, or it will show to our residents.  I am proud that every day, this care team shows up emotionally ready for the day. Many of us under-appreciate those who serve our frail, elderly and disabled, with both compassion and true friendship.  Thank you, Anthony, Jean, and the nursing teams like those at Countryside.

They say that when you meet a person, you know neither who they really are nor the path they have walked.  I am grateful to introduce you to a very inspiring young leader, Jeremy Amster, a wedding singer and nursing home administrator. Recently I conducted my own personal investigation of Tower Hill Healthcare Center in South Elgin, Illinois.  I wanted to find out how they earned the coveted 5-Star Medicare Nursing Home Quality Rating.  Skilled nursing home care is provided to both private-pay and also quite a few Medicaid-qualified senior residents.  (There are two certainties about State of Illinois Medicaid nursing home reimbursement: it is too little and always too late.) When I arrived in the lobby, I saw an award to 33-year-old Jeremy Amster called “The Friend of Seniors Award.”  The award states that Jeremy’s leadership demonstrates “quality, creativity, enthusiasm, and care built into every life he touches.”    Jeremy is the proud husband and the father of Avery, Naftali, and Adir.  His office is an art gallery of the boys’ artwork.  One of his sons told a friend, “My dad helps old people and does payroll.”  The boys are frequent visitors who love to meet and greet the senior residents.  One such visit coincided with the arrival one Sunday morning of some nursing home inspectors.  The inspection team leader suspected that someone had “tipped off” Jeremy, and he was furious!  Jeremy countered by saying, “Do you think I would be here with my 5-year-old son if I knew you were coming?” Jeremy is very involved in Chicago area Jewish community events.  He tutors kids for their Bar Mitzvah lessons.  He works long hours at Tower Hill—but on Fridays he leaves on time to celebrate the Shabbat.  He quietly stated, “I believe that Orthodox Jews have the luxury of rest.  From sundown Friday night until sundown on Saturday, my wife and sons know that I will be there for them.  My kids know that no matter how busy I am, on Friday evening… Daddy is coming home.” Regarding the 5-Star Rating, Jeremy credited that award to the ownership and the staff.  He humbly stated, “The secret to keeping great staff is to give people a place to serve and to be proud of.  We have low turnover, strong loyalty, and our team believes in this place.” Later I asked Pam Hilderbrand, marketing director, and Jorie Gustafson, admissions director, what was the secret to the 5-Star Rating.  They credited Jeremy and the ownership of Tower Hill.  They all agreed when Jeremy said, “Most facilities have a box that all residents must fit in—but we shape our box to fit what our residents actually need.”  Then they really got to my heart when they told me their “Christmas story.”  “We don’t hold back when we give our Christmas dinner.  Many of our residents will never again go home for the holidays.  So we go all out!  We lavish upon them.  They are encouraged to invite two family members to join them for a sumptuous dinner complete with carving stations.” As I finished my investigation, it was obvious to me that Tower Hill’s success is due to acting in accord with the Golden Rule: “…you shall love your neighbor as yourself.” (Leviticus 19:18) **For more information contact: Tower Hill Healthcare Center 759 Kane St. South Elgin, IL 60177 Phone: 847-697-3310 www.towerhillhealthcare.com

Celebrating New Year’s Day after a kayak run on the Fox River, I was just about knocked to the floor when I overheard someone say, “I’ve seen some wonderful deaths.” When I recovered from hearing this statement and recognized the sparkling eyes of the nurse who said it, I asked if I could meet with her at another time to learn about “wonderful deaths.”


Years ago, when my wife I announced to her parents that we were expecting our first child, my father-in-law inquired innocently if it was okay to talk about someone being pregnant. He had been raised with rules that made that conversation out-of-bounds. My, how things have changed! These days we need only to turn on the TV to be subjected to conversations about PMS or flagging male libido. In this time when “anything goes,” I have been surprised to find that there are still some taboos. As an elder law attorney, I facilitate discussions about life, death, and disability—not an easy task because nobody really wants to talk about his or her own death. Oh sure, people can consider that they are probably going to die…someday. But in their heart of hearts most people can’t believe that they are actually going to die. How else do you explain the fact that 85% of the adult population are without a simple will, power of attorney, or health care directive?  The most obvious answer is that they must not truly believe that they’re going to die. Although it’s difficult, I recommend that you take the time during the upcoming holidays and family gatherings to have what we call the Final Arrangement Conversation with your family.  A Final Arrangement Conversation should have at least two distinct elements:
  1. A written expression of your attitudes and desires for life-prolonging treatment (or lack thereof) in the event that you are incapacitated, have been diagnosed as being terminally ill, or are suffering from a long-term memory-robbing illness; and
  2. A written expression of your attitudes, desires, expectations, payment source, etc. regarding your final wishes–how your family should handle your funeral, burial, cremation, religious tradition, probable cost, music, choices of service providers, etc.
When I begin this conversation with clients and their families,  I almost always run into resistance. Seniors (even terminally ill seniors) often say, “I don’t care. Funerals are for the living, so do whatever you want.” But families really want to know how their loved ones feel about these issues. When seniors choose to talk about it, they often find it very meaningful to share their expectations. Once we overcome this conversational taboo, the discussion almost always ends with a hug.

When I was a teen, my maternal grandfather Jerry died from a sudden heart attack at age 60. His death was immediate. Later, when I was a young man, my favorite uncle Jack (Jerry’s son) also died quickly from a heart attack.  He was 58. Now that I am the same age, I worry that I will be hit with a sudden heart attack–just… about… now!  But things have changed, and these days life usually ends slowly. Stephen Kiernan’s book, Last Rites: Rescuing the End of Life from the Medical Profession reveals that since 1960, the life expectancy of a North American adult has been lengthened by 31 years. This is a stunning change in human life expectancy within an incredibly short time frame. He notes that even in 1978, the most frequent causes of death among adults were sudden–heart attack, stroke, and workplace accidents. Well, death from sudden causes may be down dramatically, but we have not defeated death–only delayed it. We’ve traded a quick death for the long, downhill trajectory of age-related memory and/or mobility losses. Terry Schiavo famously died without documents outlining her wishes for or against life-prolonging treatment. The ensuing controversy surrounding the decision to remove Terry from life support was a tragedy, and should serve as a wake-up call to the rest of us.  Everyone should create a simple power of attorney (or a living will) appointing a trusted loved one as a health care decision-maker. However, you should be aware that Health Care Powers of Attorney (HCPOA) and living wills are woefully lacking if you have a diagnosis of long-term illness such as dementia, Alzheimer’s, or Parkinson’s disease. These documents use “triggering language” which creates an authorization to act only when you have been diagnosed as “terminally ill,” which is generally defined as having a condition which will be fatal within six months or less. Doctors do not consider Alzheimer’s or other long-term illnesses to be ‘terminal illnesses’. Patients need a way to make written declarations of their desire (or lack thereof) for antibiotics, tube-feeding, etc. when they are in the late stages of these long-term illnesses and likely afflicted with dementia. Watching a loved one endure long-term suffering is one of the most terrible experiences there is.  I would have loved to have shared more years with my grandfather and uncle–but when I see friends and clients suffer multiple year declines, it makes me wonder if maybe Grandpa Jerry and Uncle Jack were “the lucky ones.”