Tips for working the Long-Term Care "System" - Federal Government

Trying to help a friend or loved one navigate through the elder care system can be daunting. Here are some tips so that you can avoid unnecessary aggravation:

Social Security: Did you know that Social Security doesn't recognize Power of Attorney documents? Well, they don't. It has something to do with Social Security being Federal and Powers of Attorney being State. So, if you need to do business with Social Security on behalf of someone else or manage someone's Social Security money. You either have to be their court appointed guardian or you need to apply to become the loved one's Representative Payee. You can find the application online if you look really, really hard. You can also go into the Social Security office and request an application.

• If you go the the Social Security office do not go at the beginning or end of the month or the beginning of the week. The office is crazy busy during those times. Pick early afternoon on a Wednesday or Thursday.
• When filling out the Representative Payee application you will need to include the name, address and phone number of your loved one's doctor. It doesn't say this in the instructions and there is no place on the application for it but if you don't have it the application will be handed back to you.
• I have occasionally run into a situation where the doctor doesn't want to fill out the form. I have found that writing a letter explaining why I need to manage the client's [loved one's] money and why Power of Attorney isn't adequate in a very humble way seems to help.
• When you receive the letter appointing your Representative Payee, keep it in a safe place because you will need to produce it at the bank and other places from time to time.
  

Veteran's Administration: They don't recognize a Power of Attorney, either. If your loved one cannot sign a release of information form allowing you to be their advocate, you have no choice but to initiate a petition to become the loved one's guardian. If you become the court appointed guardian, always keep a copy of your Letters of Guardianship handy so you can wave them in the face of the person who quips, "We only deal with the veteran, not the spouse [family, friend, etc.]. In this day and age of HIPAA Laws, everyone is afraid to say ANYTHING without the appropriate legal document.

• Try to always have an appointment. The walk-in clinic is a real nightmare. If you can't avoid it, plan on being there an entire day.
• If your loved one needs to apply for benefits for the first time, contact the local Veteran's center (VFW, DAV, etc.) to learn the best way to submit the application so that it will be processed as quickly as is reasonably possible.
• If your loved one is a low-income non-service connected veteran, plan on the application taking a year. If they need financial assistance before then, get them signed up with your State's version of Medicaid.
• You can fill out an application online at http://www.va.gov/ but please remember that you still need to print it out, have the veteran sign it and send it in even though you can electronically submit the application.
• DON'T forget to send the required documentation. Can't find the DD-214? (Discharge papers) You can send to a certified copy on the http://www.va.gov/ web site.
• If you send a copy of the DD-214, you will get a letter stating that you need to send the original or a certified copy withing a certain length of time. Writing them to tell them when you expect to be able to send it will keep the application "live."
• Give the application a couple months before checking on the status but by all means check. Sometimes these applications seem to fall into a black hole or something. Be especially diligent if the veteran was just in the reserves. We have had more problems with applications going missing for the veterans who were in the reserves as opposed to active duty.
• Once the veteran is approved for benefits, send updated medical records, bank statements and medical bills (paid) to the VA on a regular basis. You might want to mark your calendar for every three months or so.

If the process seems overwhelming to you, please get help with this. Call your local Area Agency of Aging to find out where you can go to get assistance. While it takes longer, the benefits from the Veteran's Administration come with fewer "strings" than the State Medicaid program.

How Does A Guardian Get Paid?

Anyone who is appointed by the Court to be guardian for an Incapacitated Person (IP) can be paid as long as the Court approves. The guardian [family guardian or professional guardian] needs to make sure that the ability to be paid is in the Order of Guardianship. If the provision for payment is not in the Order of Guardianship, the guardian can petition the Court for an order specifying payment.


Types of Payment:


Private Pay: An IP who has assets [savings and/or investments] would be expected to pay with the client assets. The Court may approve an hourly fee and/or a monthly fee. Some counties require a budget be submitted to pre-approval. It can be very difficult to guess how much time you as the guardian will put in at the time of appointment. The guardian can expect that the first 3-6 months would require much more time and that the required time would drop off after that. If the guardian gets approval for a budgeted amount and then realizes that much more time is required, the guardian can petition the Court to approve an amended budget.

Medicaid [Welfare]: For IPs who are on Medicaid, the State of Washington allows a base rate flat fee of $175.00 per month payment for a guardian. I have found that most of the time this is adequate, especially if the IP lives in a facility. Sometimes an IP will require more time. The guardian can provide documentation at the reporting period of the addition amount of time and request the Court approve the additional amount. The wording has to be specific to how the law is written. The Department of Social and Health Services (DSHS) will need to be notified within their required period [usually 20-days] and they can send an attorney to contest the additional fees. If the Judge approves the fees, DSHS is obligated to adjust the participation to pay the guardian.

Public Guardianship Program: This program is for those who are not on Medicaid but are indigent or very low income. In Washinton State, the Program pays the professional guardians who are contracted to be a part of the program a monthly flat fee.

Pro Bono: A guardian who agrees to accept a client who does not fit into any of the above categories would need to be willing to provide the service for free. Those who are professional guardians are encouraged to accept some Pro Bono guardianships but it is often difficult to find a professional guardian willing to take a guardianship without getting paid. Being a professional guardian is a business just like any other business and it is necessary to limit the amount of pro bono cases or the business as a whole will suffer. Sometimes a professional guardian will agree to take a client pro bono but is able to find assets later on. The guardian can then return to court to request an order allowing payment.

What is a Guardianship?

The word "guardianship" often strikes terror into the heart of the person who hears the word. The media prints many horror stories and individuals pass more personal horrors stories to friends. Unfortunately, guardianships have given a bad rap but some of it is earned. Let me tell you how guardianships work in Washington State:

1. Any concerned person can initiate a petition of guardianship.


2. The person initiating the guardianship does not have to be the guardian. You may recommend yourself or even someone else but the final decision is that of the Judge.


3. You may or may not have to pay for the cost of initiating the petition. Talk with an attorney who is familiar with guardianships. If the AIP [Alleged Incapacitated Person] has assets [investments], chances are that the AIP's estate will pay all the costs of establishing the guardianship. If the AIP is low-income, the County may pay for all or part of the fees but at a reduced rate.


4. Adult Protective Services can initiate a petition of guardianship under very strict guidelines. Typically, the process takes quite a long time. If you have a pressing concern about a loved one or friend and the APS worker agrees that a guardianship is needed, I would recommend initiating the guardianship yourself.

The Process:

• The first thing that the judge does after reviewing the petition for guardianship is appoint a GAL [Guardian Ad Litem]. This is a specially trained "third party" who talks with the AIP and all who are concerned about the AIP. The GAL reviews the petition with the AIP and asks if the AIP would like to be represented by an attorney. If so, the GAL will return to Court and ask the Judge to appoint an attorney to represent the AIP. The GAL then investigates whether there is financial exploitation, self-neglect, medical and safety issues. Then the GAL puts together a report for the Judge and will state 1) whether or not a guardianship is necessary or if there might be a less restrictive alternative 2) does the AIP need a full or limited guardianship and 3) whether the recommended guardian is appropriate or recommend a different guardian. The GAL has 45-days in which to complete the report and submit it to the Court.


• The GAL could recommend a full or limited guardianship. A limited guardianship is anything that isn't a full guardianship. The limitations will be laid out in the Order of Guardianship.


• If the AIP doesn't contest the guardianship, you can expect the process to take a minimum of 90-days from start to finish.


• If the AIP contests [fights] the guardianship the process can take much longer. The attorney representing the AIP is required by law to represent what the AIP wants. It doesn't matter that the AIP might be unreasonable. The AIP has the right to take the guardianship all the way to a trial, either before a Judge or with a Jury.

After the Guardian is Appointed:

• Within 90-days of appointment, a guardian [professional or family] needs to file a report. If it is a full guardianship, this will mean an inventory of the IP's [incapacitated person's] possessions and finances and a care plan explaining how the IP will be cared for.


• After the 90-day report, a yearly report is required within 90-days of the anniversary of the Order of Guardianship. If the IP is on Medicaid or is a DDD [Development of Developmental Disabilities] client, the report time is typically three years.


• The guardian still needs to notify the Court whenever there are substantial changes to a client's care or the client is moved to a different location. Moving the client out of the county the guardianship was originated in requires a Court Order.

Next: How Does a Guardian Get Paid?