Spotlight on Care

Legal Issues After a Dementia Diagnosis with Stephen Magro

September 27, 2021 UCI MIND Season 1 Episode 15
Spotlight on Care
Legal Issues After a Dementia Diagnosis with Stephen Magro
Show Notes Transcript

Virginia and Steve discuss the legal concerns that arise after a dementia diagnosis with Orange County probate attorney, Stephen Magro, JD, who has 30 years of experience in elder law.  Mr. Magro outlines the legal steps needed to help protect loved ones with dementia including setting up a will and trust and establishing an advanced health care directive.  For more information about Stephen Magro’s law firm, visit www.smagrolaw.com. What would like to hear about next? Email us at mwitbrac@uci.edu.

Steve  0:06  

From the University of California, Irvine, this is UCI MIND’s, Spotlight on Care, the podcast where we share stories, experiences, tips, and advice on caring for loved ones affected by Alzheimer's and other dementias.

 

Virginia  0:24  

Hello, and welcome to Spotlight on Care. I'm Virginia Naeve and I'm here with my co-host, Steve O'Leary. Today's topic on Alzheimer's and dementia caregiving concerns the legal documents that you may need to have prepared after getting a dementia diagnosis for your loved one. Before I introduce our guest for today, Steve and I both like to share a little about our own journey having to do with the topic of our podcast. I'll tell you what got me into gear, when handling financial matters with my mom.  Mom was still in the beginning stage of MCI, living in her own home. And one day I went up for a visit and I secretly, I felt bad about it. But I secretly took a glance at her checkbook. And she had noted in her register that she wrote a check to a gardener for $2,000 for a sprinkler repair. One sprinkler. I nearly fainted. So I quickly called the bank. And they told me there was nothing I could do. The gardener had come in cashed the check and he was gone.  So that incident made me realize that mom clearly wasn't safe to handle her own finances. without some kind of supervision.  I think the first thing I did was to take her to the bank and have me put on all the bank accounts. But I didn't know anything about what Steve's gonna tell us about on getting a power of attorney but I was soon to learn. Anyway, she didn't remember writing that check and it horrified her. So it to get her moving in the right direction wasn't difficult.

So Steve, Co-host Steve, I'm surrounded by Steve's today!  Co-host Steve, when did you realize that you had to have certain legal documents prepared when your wife Patty was diagnosed with Alzheimer's?

 

Steve  2:33  

You know, my story is a little bit broader than that. I because I had a father who was an attorney. And because I ran a company, I had a lot of attorneys around. So it was not uncommon to have this paperwork pulled together. But I think that I learned through our men's group that there's lots more behind just power of attorney and DNR and those kinds of things that really need to be dealt with and considered. And so that's why I'm really excited. We got into conservatorship discussions, et cetera. And I was out of my element totally. So I'm really excited to have Steve Magro talk about what else you need to have besides just the power of attorney. 

 

Virginia 3:23

Our guest today is attorney Steven Magro. He has his own practice in Tustin, California, where he has a focus on elder law. Before receiving his law degree from USC in 87’. Steve received both his undergraduate degree and his MBA from the Graduate School of Management in business and finance from UCI. He came very highly recommended to us. Welcome Steve and thank you so much for being here. Steve, from a legal perspective, maybe you can tell us why it's important to get an early diagnosis when you suspect your loved one may be developing dementia. 

Magro 4:07

It's important because there may be a narrow window of time in which to get documentation prepared and signed that can help deal with the elder’s finances. Once the dementia is set in most phone calls I receive, it's too late.  These documents ideally should be put in place before any diagnosis at all. Because once there's a diagnosis of dementia, if it has passed to a critical point, there's what we call in the law Lack of Capacity to sign the documents that will allow you to now navigate through the financials, the finances of the elder, if you've gone to the physician and you've gotten a diagnosis it’s important from the lawyer’s perspective to see if there's proper capacity for preparing those documents, capacity is a fluid thing on a continuum. There's capacity to eat, breathe, sleep, is the things that the baby does, all the way up to something that a nuclear physicist does, okay, and everything in between. But in order to do these documents, you have to have what's called contractual capacity, which means you have to have an understanding who you are, what you're doing, why you're putting the document together, what are the risks and benefits and the likely outcomes of it. So really, you want to get it done before, there's any hint of incapacity.

 

Virginia  5:52

Who decides there is capacity?

 

Magro  5:56  

It depends on what it's being asked for to determine the capacity to make medical decisions, that is determined legally by a physician, the physician will determine whether you have the capacity to make the medical decision.  If it's to make a will, or a trust, we call testamentary capacity, most lawyers can tell you that based on a very brief interview of the elder, as to whether there's testamentary capacity, there's no hard and fast rule of who makes that diagnosis. It's often done by a physician, but it's completely unnecessary. You can get a conservatorship without any medical diagnosis whatsoever. You know, it's funny to say, but you kind of got to know when you're talking to the old person, you're gonna catch things, and you're gonna see it yourself. But the point is get that stuff in place before that happens, or when it's very, very early on.

 

Virginia  6:58  

Are you talking about all of the documents, you know, power of attorney for asset management and power of attorney for health care, living will, living trust, whatever it is, you're putting together? Are you talking about all that at the same time, I was going to ask you is there one document you should start with?

 

Magro  7:17  

No, it'd be best to have all done at once, and, go to a lawyer and have them done, there are ways to do it online with certain documents. That can be dangerous, if you're doing what I call the vanilla documents, that's okay. Okay, if it's just gonna be pretty straightforward, you don't want anything too fancy, you can do them, they're actually pretty good. If you want to get into some really critical changes, then you should go to the lawyer to do them. But they should all be done at once. Because that contractual capacity, except for a will a will have a very, very low amount of capacity, that contractual capacity is relatively high. And so you'd want to get them done ahead of time. That would be the power of attorney for finances, the advanced Health Care Directive for making medical decisions, and perhaps a power of attorney for personal decisions, and perhaps also a trust into what your assets would be put.

We divide, dealing with elders into what we call personal decisions and financial decisions. Financial decisions what are we going to do with your money? How are you going to manage it? What's going to happen? Personal decisions are where you going to live? who you're going to visit with?  You know, what clothes you're going to wear?  Who you're going to socialize with?

Everything dealing with the activities in daily life that are other than dealing with your finances.  

 

Steve  8:52

When you say you should do this early? I mean, sometimes we're talking, when somebody's exhibiting any kind of memory issues well before a diagnosis. If you don't have this stuff in order, you should put it in order.

 

Magro  9:06

Yeah, at the very first hint, it might be too late. But at the very first hint it might be possible. So you really want to do them at an age that's appropriate for those decisions. In my 33 years of practice, I've had people have counseled or been appointed by the court to represent who have been as young as their early 50s with onset dementia or early onset dementia. I've had them into their 90s when they're perfectly fine.  But as a general rule, I tell everybody this, “Think right now of all the people you know, that are in their 70s and you know, a lot of them think of all the people you know, who are in their 90s.  You know almost none.” Sadly, that tells us something. The bad stuff happens in the 80s. That's pretty typical. That's probably, 

sadly, when you're going to die somewhere in your 80s. And that's when the onset of dementia is most likely to occur. So I wouldn't be doing these things any later than your 70s if you if you can avoid it, but if it does, if you haven't done it at the early onset, seriously, within a week, go get it. Because it can, there's some dementia goes very slow. And some of it goes very fast. 

 

Steve 10:37

Steve, in your experience, is there a difference between spouses and adult children, in terms of taking that step of getting the documents ready?

 

Magro 10:49

You're most apt to get treated properly, probably by your spouse, and by this, the spouse knows the other spouse better than the children ever will.  It's just the way it goes. And so if one spouse if the well spouse can get the compromised spouse to do the documents, that's better. The problem with children doing it is sadly in the area I deal with because we do a lot of litigation with children who have evil greed.  And a lot of times those documents are being done for purposes that may seem well intended. But it's basically Let's save Mama's money and save my inheritance. There's no right to an inheritance period. The thing I tell my clients is plan to be spending the last nickels you draw the last breaths, terrible timing problem, but that's where you want to go. There's no right to an inheritance. And a lot of children have, and there's a lot of children have really good motives. But there's a lot that don't or if nothing else, Brother, you know, the son wants to get mom and to see the lawyer and daughter says there's no problem. And then son and daughter are just yelling at each other. So spouses better if you can. 

 

Virginia 12:06

Yeah, there's a lot of siblings who just cannot agree on not only what the problem is, but if there's a problem. 

 

Magro  12:15

Well, yeah, and then what we usually find out is it would be nice to have it done when your spouse is there. But let's face it, your spouse is their spouse taking care of everything, that's usually when it doesn't happen. So most of the time, that's when what the widow or widower is the ones got the problem. 

 

Virginia 12:31

When I was getting mom's documents together. My mother came down with MCI in 2005. I had not heard anything about a polst, or a molst. And I see that all over the place. Now, can you explain to us what those are? 

 

Magro  12:49

I've actually not run into the molst but I can tell you what the polst is all about. The polst is the is a rapidly evolving area. If I’d use the word polst two or three years ago, we wouldn't have hardly nobody would heard of it. It's the physician's order for life sustaining treatments where the p-o-l-s-t comes from. And it's a form that doctors like to use, do you have the patient sign or the patient's authorized representative to give exactly what it says physician's orders on life sustaining treatment, if this and that happens, this is what I want done. It's a very brief form, there are a couple and this is a form that's required. California Medical Association has one you can get them from your doctor even from a hospital. And it's very specific with a form that so it's not something that lawyers craft. And it's it'll say one section is Do Not Resuscitate. So there's a Do Not Resuscitate order. Sort of the to be resuscitated through the paddles or oxygen or whatever, don't do that. And then the other one is what to withhold in the way of nutrition and hydration. If I should get to that stage where I'm dying. From my personal perspective, I think there are phenomenally dangerous documents. And I don't I personally I've noticed in my practice, I don't think they're very helpful. And I think they can be very damaging. Let me give you an example. Why on I have never heard anybody stand just dying to be on machines that can hardly wait time on the machines keeping me alive. That's been my goal my whole life. Everybody you asked you want to be on machines? The answer's no. Okay. It's just no it just, you don't even have to ask the question. Okay. The answer is no. All right. Okay. But then you started asking people well, what?  Wait a minute. What kind of machine? Okay, well, we ask you something. So you come into the hospital. Yeah, a little bit of trouble breathing. Doctor says you know, “We could put mom on oxygen, we can give her a few of these drugs over here and she’d probably be better in a week. But Oh, geez, the Paul says “Nah.”

Withhold the oxygen. Withhold the water.  Withhold all the hydration.  Once I go, we're done. Not a good idea. Okay? A lot of older women are prone to urinary tract infections, which weirdly, for some reason, tend to affect their mind. Also, when they get them, I have not heard a doctor yet explain all of that. But it does happen a lot. So your physicians life sustaining treatment, say, no extraordinary drugs. I mean, there are doctors out there, I'm sorry, who believe that antibiotics are extraordinary drugs. You want mama to die from the UTI? I doubt it.

So the problem with the polst is, it says, “Yeah, I don't want to be on the machines.” But there's a big difference between a couple puffs of oxygen, which is a machine versus something that's keeping my brain alive. And you're not gonna explain that on a one word on one page form. Let me tell you what you do need to do.  Because there's going to be so many decisions to make. And it can involve so many different medical ideas. And so many medical precepts. Get yourself an advanced Health Care Directive. That where you name the person to make healthcare decisions for you. Make sure that that person you're naming thinks like you. You want to have the person you named, they'll say, “They know me so well, that they know when the doctor says give me a hit oxygen, I want it or I don't want it. Or I'm willing to take certain experimental drugs and others I'm not.” Because you can't put on a one page form all the possible things that are gonna happen to you when you're in your 80s. It's just not gonna happen. But you can designate someone who thinks like you will be able to make those decisions appropriately for you, when that time comes. Someone who has your philosophy of life and your philosophy of what to do. A lot of these forms are with the withholding of nutrition and hydration. That kind of means when I'm sick to starve me to death, a lot of people don't want that. And some people that that's fine, they want that. But a lot of people don't so better than the polst, which is a blanket idea what to do in one page, get yourself an advanced Health Care Directive, and pick whatever that person is or thinks like you.  

 

Virginia 17:40

Is that what my document I thought was called a power of attorney for health care? It's the same thing?

 

Magro  17:48

It is technically a power of attorney for health care. But the more common phrase used these days used to always be called power of attorney for healthcare. It's now called an advanced healthcare directive. Because inside the advanced healthcare directive by law, is it contained within it as a power of attorney for health care, the power of attorney for health care strictly only says this is the person who's gonna make the decisions for me, advanced healthcare directive allows you to go further and enter delineate on the document certain life sustaining treatments that you want, or do not want. And then you can also deal with the disposition of your remains.  Advanced healthcare directive is not rocket science.  They are on the internet, and you can get them easy from the California Medical Association. It's a statutory form. They are great.  They're wonderful. Don't pay money for them. Go get it,  Download it and fill it out. It's not hard. The only hard part is following the instructions at the end. Because the instructions at the end clearly require one of two things for validity one notarized signature or two, witnessed and signed by two witnesses present at the same time, who are not the people that are gonna be making the decision for you. And some independent witness who's not your doctor.   Sadly, we once a while give them that they're not properly filled out, but have properly witnessed but they're wonderful documents. And really what you want is that flexibility, at the end of life, they have decisions made that are appropriate or not appropriate for you based on what you want. 

 

Virginia  19:19  

Or even before the end of life when you're dealing with mid, you know, mid dementia, mid Alzheimer's 

 

Magro  19:25

And the directive only kicks in when you can't make the decision yourself. So it's not like you got to worry about oh, you know, I've just surrendered all my authority.  As long as the elder can still make his or her own decisions, they make them.  

 

Virginia  19:39

But how do you know if you're if your loved one is there in a hospital bed and all sudden they're screaming the opposite of what they had told you? They wanted you to do in a certain circumstances, then then who do you believe?

 

Magro  19:54  

It can be changed that way. It can be done in in that fashion. Ah,  And then it becomes an issue

more informally between the doctor, the patient, and the surrogate making the decisions. If that screaming hollering and what they want or don't want is also coming with. And I'm Eleanor Roosevelt. And it's 1936. I don't mean that funny. That's true. I mean, you know, it is kind of funny. But in reality, when it comes with that, you know that this isn't being very well reasoned. When it's a look, I thought about this, I get it, and I understand it. And I don't want that, or I do want this or that. Pretty much the doctors gonna know. 

 

Virginia 20:39

All the better reason to have a good doctor and have them know your loved one well. 

 

Magro 20:44

Yeah, and the likelihood of them knowing them not not good. Cuz you're probably going to be in the hospital setting with a doctor you've never met before. But they'll be able to evaluate. Is this a reason to position?

 

Virginia 20:56

I don't know, a thing about conservatorships. I do know somebody who's having a great deal of difficulty with her siblings making decisions without her. They actually moved her mother to a different facility without even telling her.  How do you prevent that kind of thing from happening and can you? 

 

Magro 21:19

That's a rather common, not uncommon occurrence. On the conservatorships work, but it's the last place you want to go. It's the last resorts the last stop on the train.  They are expensive, lengthy. They involve the court. They involve a court proceeding, and a hearing, formal accountings. And they take a lot of money and a lot of time, and they're a pain in the neck. They work if you get them instituted, but you want to do everything you can to avoid that.  I run at any given moment I'm administering with clients probably 20 conservatorships on any given time in my practice.   I always tell people, bad things happen in the courthouse. The only way to avoid the bad thing is don't go in there. I got to go down there every day. And now we do it by video with COVID. But avoid this at all costs. If you have a if you have a good trust setup, and you have a good advanced health care directive. You don't need the conservatorship, that's what we call a conservatorship substitute. We have a power of attorney, a good trust and a advanced healthcare directive. You not only don't need a conservatorship, but that wouldn't work anyway because those documents trump the conservatorship, conservatorship is basically when one of two things. I don't have those documents, it's too late. Okay. The only other way to get ahold of the elder’s finances and stuff had to do the conservatorship. The second one is where there is, as you mentioned, rank in the family, and no, no clear decision, and you know, the daughter wants mom to go this place, son wants mom to go the other place. And then it becomes a battle. And it ends up in the courthouse. And it's a rotten, horrible thing to go through. I tell most of my clients, we have a typical daughter and son battle.  Now if I'm representing one of them, and if we resolve the conservatorship issues with spending $60,000 in six months, I'm a hero, I was cheap and came in under budget and under time.  If you file for conservatorship, today, your first hearing will be six months, you can get in a temporary on a five day notice.   Any lawyer tells you can do that for $5,000. If nobody objects is pretty much a bargain. They're difficult, difficult things to do. But if a conservator is appointed, there's two types of conservatives. There's what we call the person and the estate. It's similar to what I was saying earlier with the finances and the personal decisions. The conservator, the person makes personal decisions, conservatorship of the estate makes the financial decisions. Those can be the same person or different persons. And as far as the visiting and things like that the conservator that's appointed will have the right to determine where that elder lives and resides, what care facility they go to. And if granted medical powers, which is an additional power and conservatives will also make medical decisions for the health.  All that being said, you can't go secret them away and hide them from the rest of the family or isolate them.  As a conservator, you're under the microscope of the court. And the court looks over it. It's not like a civil case where the courts not actively involved here the court will be actively involved to a certain extent, watching over what's happening. And if daughter, squirrels mom away in a facility and doesn't tell Son can go to the court file a petition, and get revealed where she hid mom, and as she hit mom, the courts probably going to remove her. The court does not like to see lack of visitation. That's the one thing that probably angers them more than anything else in a conservatorship, short of stealing money. 

 

Virginia 25:37

Interesting. So the best thing to do is to not end up with a conservatorship. The best thing is to figure out how you can all get along and, and get the best care for the parent.

 

Magro 25:49  

If you don't get the if the children don't get along, you're probably gonna end up with the conservatorship if they do get along you can probably get by without it.  And it's it just varies from family to family.  Sometimes too, sadly, it's a dollars powerplay.   Daughter has money son doesn't daughter gonna go get the conservatorship son doesn't have the ability to fight it even though they hate each other. He just doesn't have the financial horsepower to go, go get it done. 

 

Virginia 26:24

I realized how lucky I was when I had two brothers, I would say jump and they'd say how high? 

 

Magro  26:30  

Well, it's, you know, the vast majority of cases that children do get along.  I in my practice, 90% of what I do is that 10% that don't get along. It's like going to it's like going to an oncologist. Every oncologist I'm sure thinks everyone has cancer, right? Because she's been out of cancer all day long. I only see the bad, the bad ones, the good ones never hit my desk.  They're taken care of through proper documentation, and they go on their way. 

 

Steve 27:01

Steve does the trust itself, the Living Trust, help any of this in terms of who is responsible for what? 

 

Magro 27:11

Yes, the trust is both a vehicle for disposition of your assets upon your death, as well as management during your lifetime. So if you become incapacitated, your trustee is the person that you've designated to step in and handle things when you can't automatically steps into your shoes, and manages those assets that are in your trust. So usually the child is named as the successor trustee. So that child when there's no incapacity problems wouldn't kick in until

their death has occurred. And I distribute the assets. But there's incapacity during lifetime the successor trustee is the child will step in and manage those assets that are in the trust. However, the trustees be viewed as sort of a bucket, a bucket into which all your assets are placed.  And the trustees running around with the handle on the bucket and can stir all the stuff inside. Well, that works. But you better have everything in the bucket. Because if it's out of the bucket and not part of the trust, it's not governed by it. So you need to make sure that you have a funded trust, which means that your assets are placed in to the trust by changing the title to them, so that they are in the bucket, so the person can deal with them. If they're outside the bucket.  It can be controlled by a power of attorney, or the conservative. Powers of Attorney for finances are wonderful things that don't work very well.  They're only as good as the person you're using them against. Let me give you an example. Mom has a bank account it’s in her own name. Nobody else is on it. And mom doesn't have a trust. It's not in their trust. And mom becomes incapacitated daughter goes down to the bank and chosen the power of attorney and says, Look, here I am. It's my turn to control. Well, that's what the lawyer is going to tell her. I'm a law is that, yep, she does control and that power of attorneys effective. Getting the banker to recognize it's another story.  Bankers are nervous of liability. They're concerned. They're frightened. I understand it, I get it. And the likelihood of them paying much attention to that power of  attorney is very, very small, they'll find some excuse to not deal with it. Reliance on a power of attorney is not good reliance. It strangely, here's what's so strange. When you have to go to the banker and get the banker to swallow the power of attorney. You're now at the mercy of the banker. Okay.  But if you want to use the power of attorney to sign away mom's $2 million apartment complex, it can done like that because you got the power of attorney recorded the County Recorder and ask any questions. There's no middleman you got to deal with.  The bank stand between the cash and you. Okay banker stands between you and the cash. But dealing with real properties is a snap. Powers of Attorney great for dealing with real property terrible for dealing with bank and securities accounts. 

 

Steve 30:25

Sorry to interrupt but another recommendation you would make is then have checking accounts or savings accounts have dual signatures on them to begin with? 

 

Magro 30:34

No, probably the worst thing you can do. It's the most common it's the most common thing that everybody does.  And probably the worst that you can do. Here's why.  It's common because it's super easy. Yeah, I'll go down to the mom and dad or go down to the bank they open up the account they're both on the signature daughter can pay mom's bills, yada yada yada.  On we go.  No powers of attorney, no nothing,  move on. Well, let me give you what happens. All of those assets are now exposed not only to mom's creditors, but daughters too.

Okay, so mom probably didn't do a whole lot in life's pride and drives not can get an accident doesn't do a whole heck of a lot. Not much gonna happen. Like they're getting sued on some pretty damn small daughter has three kids in tow. She's always going to the soccer matches. She's always going out to go get frozen yogurt.  She’s on the road, four hours a day. She's engaged in commerce, she's doing things her husband's buying something and then he can't make the payments on it. And when the creditor or the person that sues and then and then daughter is busy and she forgot to renew the auto insurance and Lexi and others an accident, and there's a lawsuit and there's a $500,000 judgment. Anything daughter has her name on is fair game with the creditor. Yeah, that person sues you can scream up and down all you like, “That's not mine.” I'm just talking for convenience with mom. No, that doesn't work. So now you've taken those assets and you've exposed them to all these creditors. Now most people go “Oh, my daughter's not going to get in creditor trouble.” Yeah, they won't. Here's the answer your question. Yes. “Hey, I know your daughter's not gonna get in creditor trouble. What about your son in law?” “Oh that S.O.B. I've hated him my whole life he of course, you're going to get uncredited a couple that guy he just a spender man, you know, they'll tell you that kind of stuff. And it's exposed to all those creditors.  They default on a car payment, they're gonna go.  Come on  mom's accounts got $500,000 and go kaput, it's easy. So you don't so much you want to do just kind of small checking account that has small balances, for taking care of mom stuff. The dual checking account is not a bad idea. Keep the balance low and move money over. As you go from one account. 

 

Virginia 32:58

Who moves it? You do the daughter, the daughter moves the money?

 

Magro 33:02 

Like for instance, nobody wants to be rocking around with a checking account held in the name of their trust. It's just weird. It looks funny. So have the trust.  Daughter is the successor trustee. and every month daughter moves 5000 bucks from just writes a check on the trust account, the one check, throws it into the checking account that pays the bills. And then she hops online or writes checks if you're old fashioned and write checks. Now if you hop online, you do your payments, and then only $5,000 A mom's spending 5000 bucks a month, mom's 5000 is running through that checking account. But the day that the creditor has come to hit on it or levy a judgment on it, they go and get the 5000 a month the rest of it.  And then it's easy and convenient because now you can write the checks. You can help mom manage mom’s money. 

 

Virginia 33:56

I had no idea. I'm lucky I made it out of this okay.  All right. Well, you know what, it's probably time to wrap things up any last words of wisdom, Mr. Magro?

 

Magro 34:12

Get your documents, get them early. Go see the attorney. Don't wait for the diagnosis. And be nice to your sibling so that you don't have a lot of problems.

 

Virginia  34:26  

I think that is great advice. I think that's wonderful. And we sure thank you for being with us today. 

 

Magro 34:36

My pleasure, anytime. 

 

Virginia 34:38

It's really a lot of very helpful good information that I think a lot of people will listen to several times to make sure they've caught everything  you know, to our listeners, you can find Steve's contact information in our show notes. And we thank everyone for listening. And be sure to join us again soon on Spotlight on Care.

 

Steve  34:58  

Spotlight on Care is produced by the University of California Irvine. Institute for Memory Impairments and Neurological Disorders. UCI mind interviews focus on personal caregiving journeys, and may not represent the views of UCI mind. Individuals concerned about cognitive disorders, prevention or treatment should seek expert diagnosis and care. Please subscribe to the spotlight on care podcast wherever you listen. For more information, visit mind.uci.edu

 

Transcribed by https://otter.ai