PLANNING OPTIONS FOR THE SOLO SENIOR
What happens to those people who truly have no one to help them? No one who can, or even would, make decisions for them?
This situation arises more often than you may think. As people age, family members and friends die or move away. Even a person who had a large family and many friends may find himself alone in his golden years.
I’ve often admonished people to have an attorney draft an advanced health care directive (that is, a living will and health care power of attorney) and a financial power of attorney drafted for them; moreover, I tell people that an elder law attorney, not just any attorney, should draft these documents, because not all powers of attorney and advanced health care directives are the same. Like any legal document, a lawyer who is intimately familiar with a subject area is going to draft a document that is different than a lawyer who is not as familiar with a subject area.
I firmly believe that these documents could be the most important documents a person can have, if the person ever were to be disabled. So, having the documents, and have the documents drafted properly, is something that I will always instruct people to do.
But what about the person who has no family or friends on whom they wish to impose? A good percentage of people who reside in nursing homes or other long-term care facilities are unable to make decisions for themselves and have no one who can make decision for them. This situation presents significant obstacles to the facility providing proper care to its resident.
For instance, if a person ends up in a hospital and is incapable of making decisions for himself but needs a surgical procedure, the hospital will often petition the court to have a special medical guardian appointed for the patient. A special medical guardian is a temporary guardian who can consent to medical procedures only. I was recently appointed the special medical guardian for a patient who required minor, exploratory surgery.
Having been appointed as someone’s special medical guardian, I can tell you that it is a rather unpleasant experience. What if my ward required major surgery that could mean the difference between life and death? What if the doctors requested that he be placed on a respirator or that a feeding tube be inserted into his stomach?
Consenting to such requests is not a question of authority, as a person’s medical guardian, I could consent to these medical procedures. I had the authority. It is the burden of making these decisions – not knowing how the ward would feel if he were capable of making the decisions for himself – that is the true burden for an unknowing guardian carries.
After the ward receives medical treatment at a hospital, he may be discharged to a nursing home for rehabilitation. After receiving rehabilitative treatment, the man may become a permanent resident of the nursing home, unable to be discharged because of his medical and long-term care needs.
Yet, the nursing home will probably have little or no personal information about the resident. The nursing home will not be receiving payment for its services, because the resident is incapable of paying his bills and his assets are as much a mystery to him as they are to the nursing home.
The nursing home may apply for Medicaid on behalf of their new resident, assuming that its resident has no money and knowing that, at best, his assets are unknown and unavailable to him; however, the application for benefits may be unsuccessful.
The Medicaid Office might press the nursing home to supply some information about the resident’s assets. Unable to supply any information because of a lack of knowledge and access, the application may linger for months.
From time to time, I will receive a call from a nursing home requesting my services in having the Public Guardian for the Institutionalized Elderly – an New Jersey agency that will act as the guardian for institutionalized elderly individuals who have no other person who is ready, willing, and able to serve as the guardian – appointed as a resident’s guardian. Once appointed, the Public Guardian can often complete the application and act as the full legal guardian for the resident, making all financial and health care decisions.
Like me when I had been appointed special medical guardian, I am sure that the Public Guardian has some misgivings about the decisions he makes on behalf of his wards. Whenever one person has to make decisions for another, not knowing what that person’s wishes are, there are misgivings.
So, what can a person who has no one to make decision for them do? First of all, he can have a living will, which is an instructive directive. A living will says, in writing, what type of medical procedures a person would or would not want. Secondly, the person can keep a list of his finances and keep that list in a location where people looking can find it. I’m not suggesting that he keep this information out in the open, but it also shouldn’t be so hidden as to prevent a person looking for it from finding it.
A person who has no one to make decisions for him must take the initiative to help those unknown people who may need to make decisions for him someday. As always, planning ahead is always a better option than leaving things to chance.