The Role of Elder Law in Dementia Care

This episode features elder law experts from Oregon Elder Law. We are discussing planning for incapacity, legal documents, and long-term care options, emphasizing the importance of early planning and legal safeguards.

• Planning for incapacity and legal documents
• Long-term care options and affordability
• Medicaid, estate recovery, and spousal protections

To learn more go to:

National Academy of Elder Law Attorneys:

https://naela.org/

Oregon Elder Law:  

https://www.oregonelderlaw.com/

National Elder Law Foundation:

https://www.nelf.org/

Transcript

   Hello, Hope Floats listeners, Shoshawna here. The content of today's podcast is provided for general information and educational purposes only, and does not constitute legal, financial, medical or other professional advice. Always consult a qualified professional about your specific situation. For more information about how to find an elder law attorney in your area, you can go to the National Academy of Elder Law Attorneys website or naela.org. Now on with the show. 

Shoshawna Rainwater  00:41

Welcome to Hope Floats, a podcast for people navigating the challenges of caring for a person with dementia. I'm Shoshanna Rainwater, a licensed clinical social worker and dementia consultant based in Portland, Oregon. I'm also the daughter of a parent living with dementia. 

Today we are joined by three elder law attorneys, Julie Meyer Rowett, Whitney Yazzolino, and Gina Goddard from the firm Oregon Elder Law, based in Portland, Oregon. Julie Meyer Rowett graduated from the University of Oregon School of Law. Her expertise includes estate planning and administration, protective proceedings, special needs planning, Medicaid, and planning for long-term care. She is an active member of the estate planning and elder law sections of the Oregon Bar, and she's also an active member of the National Academy of Elder Law Attorneys and Academy of Special Needs Planners. 

Whitney Yazzolino earned her law degree from Lewis and Clark Law School. As a partner at Oregon Elder Law, Whitney's practice focuses on estate planning, probate and trust administration, guardianships and conservatorships and Medicaid planning. Whitney is a member of the Executive Committee for the Estate Planning section of the Oregon Bar and she is also co-editor of Managing Someone Else's Money produced through the Consumer Financial Protection Bureau. 

Gina Goddard earned her law degree from Vermont Law School and started her career working in the environmental law and policy field. Gina volunteered her time with Guardian Partners and later joined the Oregon Elder Law team. She's an associate at the firm and volunteers with both Multnomah County Senior Law Project and the Milwauki e Senior Center. She's a member of both the Estate Planning and Elder Law sections of the Oregon State Bar.  

So welcome Gina, Julie and Whitney, so glad you are with us today. I might open by asking each of you to just tell us the “why” behind why you decided to go into Elder Law, specifically, knowing that as lawyers, you could have chosen any field;   why did you choose this particular niche or this area of expertise? 

Whitney Yazzolino  02:58

I'll start off. 

Shoshawna Rainwater  02:59

Sure, Whitney.

Whitney Yazzolino  03:01

It's just a pretty easy answer. It's because of the relationships, the connections you make with the people that you're working with. Legal work is satisfying, but meeting people and connecting with them and knowing you're giving them a service to help improve their life that's meaningful. And I think it's fair to say that we're in an area of law that's problem solving, right? We're helping people develop plans to move forward. In most cases, we're not meeting people in crisis. For estate planning and planning for incapacity, we're really helping people put that plan in place and be proactive. And it feels good.

Julie Meyer Rowett   03:37

Well, where did you start your career? Whitney?

Whitney Yazzolino  03:39

Oh, I started as a Medicaid case manager for Multnomah County, and so I knew going into law school that I wanted to do elder law. And through my track of law school, I fell in love with taxes, which is on the other end of the spectrum, and then really enjoyed learning about estate planning, and that's how we married our practice here with estate planning and elder law.

Shoshawna Rainwater  04:05

How about for you, Julie and Gina?

Julie Meyer Rowett  04:08

Well, I started I didn't really know a lot about elder law. When I went to law school, I never took a class on it. But out of law school, I started Legal Aid, and at the time, I was put into the role as the public benefits attorney. And so it turned out that most of my work at the time, because we were going through some budget cuts in Oregon, was around Medicaid eligibility. And so from there, I  fell in love with Elder Law and Medicaid as a new after just a few years that that's what I wanted to focus my career on. It sounds dry, but really, practically speaking, what you're doing is you're because, at the time, you know, I was helping seniors retain housing, right, people who are facing loss of their long-term care. And so the practical end of it is very rewarding.

Shoshawna Rainwater  04:47

Yeah, kind of speaking to Whitney's point around, the “meaning making” out of this, right? It's meaningful work. Thanks, Julie. How about for you, Gina?

Gina Goddard  04:56

Well, I had a little bit more of a circuitous route to Elder Law, because I went to law school thinking I wanted to do environmental law, which is where I did start my career. I did take some classes in estate planning and tax, which I actually really enjoyed, but had never thought about it as a career. And then when I got into environmental law, it was really a lot of policy-focused work, which is important and good work, but it is slow moving, and you don't see results quickly. And I really liked the idea of helping people more practically in day-to-day issues that come up, and in particular when you're going through some really vulnerable times in your life. And through that, I started to focus some continuing legal education in this area, and that's when I really developed reasoning for wanting to do it, and kind of started to go down that path and landed here.  And I really, really enjoy the subject matter all around.

Shoshawna Rainwater  06:07

Yeah, it sounds like elder law for all three of you is very human-focused work, leaning into those opportunities to support people at what can be a very challenging and difficult time for many people. Well, I think it might be helpful for our listeners if we start with this idea of planning for incapacity. And maybe we could start by someone sharing a little bit more about what do we mean by “incapacity,” and why does that matter?

Whitney Yazzolino  06:41

Well, I think incapacity at its very basic meaning is that you can no longer make informed decisions for yourself, right? Not able to receive information; we use the term “evaluate information.” So looking at the pros and cons and making a decision that best suits our needs based on the circumstances. And it's important, because if you can't make a decision for yourself, who's in line to act for you, and that's the primary basis of estate planning is   you're creating a plan where you're naming somebody and authorizing them to step in and act for you when you can't act for yourself.

Shoshawna Rainwater  07:22

What I think is missing for a lot of folks is a lack of clarity about how dementia impacts decision making in the future. And the Hastings Report of 2024 underscores that one of the most foreseeable losses in dementia, regardless of the subtype, is the inability to make decisions for oneself having to do with bigger, more significant decisions; they can still express preferences and certainly have some agency and choice and in some more manageable kinds of decisions, but the big picture issues, that decision-making capacity and capability is usually significantly impacted by middle stage and then certainly by late-stage dementia. And I worry that people don't understand that about the dementia trajectory, that that is a certainty that's coming. How do you folks see that, knowing that it's a time sensitive issue?

Whitney Yazzolino  08:21

Well, and I think that when someone comes in and maybe they have a friend or a family member or even themselves, have an early diagnosis, the conversation usually centers around, this is a progressive disease, and that over time they decompensate–  their ability to act becomes more and more impaired. 

Shoshawna Rainwater  08:42

Do you think that surprises people? 

Whitney Yazzolino  08:46 

Yeah, I don't know that it surprises people. I think that people get stuck because it's so scary.   There's a basic understanding that that is the trajectory, and they just don't know quite how to grasp that or to prepare for it. I think it's fear.

Julie Meyer Rowett  09:03

Denial, too, that,  I think in theory, everyone says, “of course we face incapacity as we age;” but the reality for yourself can often be and maybe that's the fear Whitney was talking about, “it's not going to happen to me, and I don't need to do this planning.”

Shoshawna Rainwater  09:16

Anything to add, Gina,on that particular question?

Gina Goddard  09:20

I think sometimes people don't realize that's going to happen to them or to their family member and so they don't think they need to do planning. And then sometimes we do see the crisis end of that because of that denial or misunderstanding of how the disease may progress.

Shoshawna Rainwater  09:40

I often hear and we know that the diagnosis of dementia does not immediately mean that people can't make good decisions or that they've lost legal decision-making capabilities. B ut from your view and your experience, how do we go about assessing that capacity? Is that something that you do in your practice?  And if so, how do we evaluate for that?

Gina Goddard  10:04

When you're meeting with a client, you're determining whether or not they have the legal capacity. They may have a diagnosis, obviously, which is different than the legal capacity. And so you get a sense of, do they understand the nature of their assets and what they own, how they own it? And then who are their family members and the people in their lives that are important to them? And do they have an understanding of the documents, or the authority that they may be giving to people should they become incapacitated.

Whitney Yazzolino  10:40

Well, and I think it's important also to note that even if someone has a diagnosis and they are farther along that path, and there is questions of incapacity. This is one of my favorite phrases, “moments of lucidity;” so somebody can be compromised, but have moments where they present how Gina just explained, right? They're aware of what they're asking you to do for them. They're making decisions about who they want to act for them or where they want their assets to go. 

And so sometimes, when we're working with clients that we know have a diagnosis and they are impaired, we'll talk with family. You know, “when does this person present the best? first thing in the morning? after a nap? And we try to capture those moments where we have those moments of lucidity, where the person still has a voice to enter into this planning.

Shoshawna Rainwater  11:35

I love that idea of sort of tailoring the time that you meet with folks to maximize their cognitive capacity.  What are the best documents or the kind of the most important documents that a person needs to have completed before incapacity sets in?

Whitney Yazzolino  11:53

Julie, do you want to take one?

Julie Meyer Rowett  11:55

Well, I always talk to clients about, at least in Oregon, the bifurcation between medical decision making and financial decision making, so we need documents that address both of those areas.

Shoshawna Rainwater  12:07

Julie, will you say what bifurcation is for those of us who are not legal folks?

Julie Meyer Rowett  12:11

Sorry, the difference between like nominating someone to make medical decisions for you and somebody to make financial. And sometimes you're naming the same person in both roles. You know often where you know people who are marrying spouses first in both roles. But it can be different, as well. So in Oregon, we use the Advanced Directive for Healthcare to nominate what we call a “healthcare representative.” And then, of course, on the financial end, we rely either on a Power of Attorney, almost always, or sometimes a trust, as well, to name a financial decision maker. So we talk about which route might be better for that particular client and what might suit their needs, but you need to cover both of those decision making areas.

Shoshawna Rainwater  12:52

I think that's really key for the listeners that at least here in Oregon, and my guess is that this is true in a lot of other states, is that these are two separate documents that cover very different things. And in my career, there were times when I was working in a hospital setting where an individual would come in without the ability to be directing their own care,  and oftentimes families would say, or an individual would say,  “I can make all the decisions I have this POA.” And when we looked at it, it really only spoke to estate planning. And I think it surprises people to learn that these are actually two separate categories of important care that get covered in these different documents.

Gina Goddard  13:36

Yeah, it's definitely a source of confusion for people. They say, “I have Power of Attorney so I can make medical decisions.” And there are states that do call it a medical Power of Attorney. So I understand the confusion, but yeah, that's one of the first conversations I have with clients is the difference between the two, and how we phrase it, at least here in Oregon. The other piece of that I wanted to address was, I think sometimes people think, because they're married, they have the decision-making authority and they don't. 

Shoshawna Rainwater  14:08

Oh say more.  Say more about that.

Gina Goddard  14:11

Just because you're married doesn't mean you can make medical decisions on somebody's behalf or act as their Power of Attorney.  Iif you have jointly held assets, that's different, but you can't automatically access your spouse's assets that are individually in their name, and that's why those documents are so critically important while somebody is alive to have the financial Power of Attorney and the Advanced Directive for the healthcare rep to make decisions.

Whitney Yazzolino  14:39

Even just to take it one step further, when we're looking at a married couple and one spouse has a diagnosis, and we're looking at long-term care, if that house is jointly owned by both spouses, the “community spouse,” the healthy spouse, can't sell the house that's jointly owned with the spouse, just because it's a joint asset; they would still need the Power of Attorney to enter into that transaction, to act on their spouse's behalf. So whether an asset is joint or it's individually titled in the spouse who has the incapacity, the healthy spouse has to have legal authority to act on the ill spouse's behalf.

Shoshawna Rainwater  15:27

Are the DIY Do-It-Yourself documents, in most cases, enough for things this complex? And if not, say more about that, please.

Whitney Yazzolino  15:38

I think my biggest concern about Do-It-Yourself estate planning is that it's so state specific and that the programs don't necessarily delineate state law, and they use different terminology. And for the Power of Attorney, in particular–that's the document where you name the agent to handle your finances–when you have named someone to act on your behalf, they have a fiduciary responsibility to you, and so they cannot use your assets for their benefit. That's a breach of fiduciary duty. 

And then most Do-it-Yourself Power of Attorney don't allow gifting–to take your assets and gift them to another person, a third party, or even to the agent; and that's really important when you have a married couple, because if you have one spouse who is healthy and they want to be able to shift assets around for long-term care planning, they have to be able to make a gift and make that gift to themselves, and the document has to specifically authorize them to do so, or they can't do it. And those are provisions that are not going to be, I think, available in most Do-It-Yourself documents; they're specialized.

Julie Meyer Rowett  17:03

You can also run into issues of a financial institution being reluctant to honor a DIY Power of Attorney. They can tell that it was not prepared by an attorney who established an attorney-client relationship, established capacity. As we've certainly seen instances where a financial institution will not honor a Power of Attorney like that. 

Shoshawna Rainwater  17:23

I've heard those cases, too, and I think that's helpful, Julie, to understand that banks may look at DIY POAs  differently than they might respect or follow something that's been drawn up by an attorney.

Whitney Yazzolino  17:39

The attorney is the gatekeeper, right? That's our primary job, is to make sure our client has capacity to do what they're asking to do, and that they're not being unduly influenced by someone else to do it. I think the protection of having an attorney prepare that document, you're going to be more successful in having it honored by a financial institution.

Shoshawna Rainwater  18:01  

That makes sense, because there's this additional layer of vetting that's happening when you folks are involved. You're evaluating whether or not this individual is in a situation of undue influence or pressure?

Julie Meyer Rowett  18:15

I think where you see Power of Attorney scrutinized a lot right now is with real estate transactions, and we've even had our document scrutinized by title companies.

Shoshawna Rainwater  18:23

So at least for our listeners here in Oregon, a healthcare Advanced Directive, which is the document that assigns a healthcare proxy and also allows a person to give us some information about what kind of care they would want. That's important for the bucket of care that has to do with medical and health care. 

Julie Meyer Rowett  18:44

And then I would add POLST to that, because we get that question a lot. The POLST–the Physicians Orders for Life Sustaining Treatment–is also important to have. It's different than the Advanced Directive, because it gives just emergency treatment instruction. So it's not enough. Some people think the POLST is sufficient, but the POLST does not appoint your representative. But you really should have both, and the POLST is done with your physician because the physician is signing those orders.

Shoshawna Rainwater  19:10

That's a great point. Julie, maybe, maybe I'll ask one of my medical colleagues to come on in a future episode and talk specifically about the POLST;  but yes, you're right. A POLST is not a replacement for an Advanced Directive, because there's no place on there to assign your proxy decision maker. It can be signed by somebody who's making medical decisions, but that's different.  

Are there any other really key documents that people should have while they have capacity and before dementia has progressed and incapacity has set in? What else would you want folks to know and to emphasize?

Whitney Yazzolino  19:45

Well, I think it depends on someone's specific situation. I often tell clients that the Power of Attorney is by far the most important document that they can create through an estate plan, for planning for incapacity. It sounds kind of weird, but not everyone needs a will, because we have a backup plan through the state of Oregon–we call it Intestate Succession–that tells us where our assets go.  I think that if you're going to be working with an attorney, and having a Power of Attorney and an Advanced Directive, having a will is an excellent idea, but there are other ways to structure your assets to pass after your death. But yeah, a will or a trust, those are important documents to talk with the lawyer about. 

But one other document that I see, and I don’t know Gina and Julie, you guys are seeing this as often as I am, and it's not for someone when they're alive, for planning for incapacity, but it's who has the authority to direct the disposition of their body when they died. 

Shoshawna Rainwater  20:42

Oh my goodness.

Whitney Yazzolino  20:44

There's a whole statutory priority of people, and they're heirs, right? It's your spouse, it's your children, your parents, siblings; but it doesn't give authority or priority to a partner if you're not married, or if you have children who have differing opinions. So the Disposition of Remains is an important document that I'm seeing pop up a lot more in estate plans. It's the appointment of the person who gets to make the choice. So if you have a long-term couple, they're not legally married, and one of them dies, the surviving partner doesn't have priority, under the law, to decide what happens with their partner's body. So having that document in place ensures that your partner is the person who can do that. 

Shoshawna Rainwater  21:32

So to to synthesize this part of our conversation about planning for future incapacity, it sounds like there are at least three documents that are really key here: the healthcare advance directive, the Power of Attorney that manages the estate and financial pieces,  a will or trust and potentially now this disposition of one's body once an individual has died.

Whitney Yazzolino  21:59

And it's definitely not part of the planning for incapacity talk, but since we're talking about, just throw that in.

Shoshawna Rainwater  22:09

Yeah, a freebie!  Well, and to Julie's good point too, there's a POLST that probably would need to be completed and all of that.

You know, I have always in my work, known enough to stay in my lane about the legal landscape, and all I have really ever felt comfortable saying was in a landscape this complex, we really do benefit from meeting with someone who specializes in elder law. And I've often wondered, is that an exaggeration on my part? Is that hyperbole?  You would tell me in this moment, if I was exaggerating when I say it's really smart to meet with an elder law attorney. Is that fair to say?

Whitney Yazzolino  22:50

I would almost say it's critical. And I think that the one piece that's kind of the flip side of this conversation is that if you have an individual who doesn't have capacity, and they've missed that window to create an estate plan and there are actions that need to be taken–you know someone who needs to direct the medical care or make placement decisions or manage their income or assets–if you don't have the Power of Attorney or the Advanced Directive, then the family is looking at working with an attorney to open up a court proceeding; and at that point, the independent voice, the autonomy of that person to choose their decision makers and direct the kind of care that they want is gone. 

The court appoints a fiduciary who steps in, and that proceeding is expensive; it is in place for the rest of that person's life, and there's ongoing annual reporting; and it's no longer a private matter that's handled within a family, now it's subject to the jurisdiction and supervision of a court.

Shoshawna Rainwater  23:57

When I hear the statistics that 50% of people living with dementia are not diagnosed, and for those that are diagnosed, it usually doesn't happen until they're about in mid-stage, that, to me, just underscores this critical need for earlier diagnosis; because when we don't know that there's a degenerative condition for the brain at play, we missed that window for first-person care planning. 

Music transition

Shoshawna Rainwater  24:39

Gina, maybe you could start us off by talking a little bit about this landscape of options for long-term care. Many people living with dementia will not be able to live for their entire life with dementia in a home setting. That is, unfortunately, one of the hard realities that many people are needing to be in a care setting. And I think there's a lot of sticker shock around how expensive that can be. And so I'm hoping we can have a conversation now about options for long-term care, and if we could talk specifically around this affordability piece for the average person that you see.

Gina Goddard  25:18

Unfortunately, the cost of care, if you need to place somebody in a facility, is very, very high, especially if they need memory care level and you are looking upwards of $10,000 to $15,000 a month. And for everyday Americans that breaks the bank. People can't afford that. And so when you are trying to figure out how to pay for that, sometimes you may be looking at public benefits to help you pay for that care. And I do find sometimes when I raise that issue to folks, they don't think that they would qualify for public benefits. They say, “well, we won't qualify.”  But the reality is is when we're looking at long-term care under public benefits like Medicaid, there are rules around being eligible for that, especially for married couples that allow the healthy spouse to retain their assets so they're not impoverished by the costs of care while their spouse is living in a facility.

Shoshawna Rainwater  26:37

Yeah, that spousal impoverishment piece I know is a really, probably a significant piece of what you folks deal with in your practice. And also, I can just tell you from my vantage point, it's a huge concern for spousal caregivers that I'm meeting with– this affordability of care looking at a future of their own health and wellness, thinking “I will have nothing left to live on.” 

Julie Meyer Rowett  26:59

Well, to start, Oregon, we have a waiver, and so we have Home and Community Based Care Services, which means you can get Medicaid in the home assisted living and memory care, all the continual care, all the way up to nursing home care. Not all states have that; a lot do. So it's very state specific when you're starting to look at this. 

And then in addition, we have these federal laws that exist to protect what we call “the community spouse,” so the spouse that's not in care and provides for a certain amount of resources and income that can be allocated to that community spouse. But keeping in mind that every state implements those laws a little differently. So this is an area that's very highly state specific in how it's implemented and will look different whether you're like in California, for example, versus Oregon.

Shoshawna Rainwater  27:45 

So listeners, if you're listening from anywhere outside of Oregon, this is even more reason to really know what's in your particular area.

Julie Meyer Rowett  27:53

Something that people are very fearful of is losing the home, as I think primary thing people say when they come in. And the home is generally considered an exempt asset as long as a spouse is living in it, so meaning it's not counted towards your financial eligibility as long as one spouse is living in that home. And so I think that's a place of fear that a lot of people operate from. And no, no one's going to force you to sell your house.

Whitney Yazzolino  28:22

That's a common misunderstanding. It's one of the first concerns that someone usually addresses when they come in, is “are they going to take my house?” And so I think the education piece that an attorney can provide to you know a client about Medicaid and how you qualify and what the benefits are, and then what the recovery claim looks like, is invaluable; because I think almost 100% of the time, clients walk out of our office feeling much better because they understand they have options.

Shoshawna Rainwater  28:51

Can you say a little bit more about the estate administration recovery piece, once both partners have died? Do we have a sense of what happens then, at least in the state of Oregon?

Julie Meyer Rowett  29:03

Medicaid Long-Term Care is the only program that we have a state recovery for nationwide. And just to back up a little bit, it's really not that effective. It recovers less than 1% of the cost. And so there's a lot of debate about the effectiveness and even the necessity for Medicaid estate recovery. There's also a lot of data about it has a really disparate impact on people who are lower income and who have less assets. Most of the recovery is coming from people who have very modest, if not poverty level, estates. So it's a controversial program to start with. Oregon has unfortunately adopted a very expansive and aggressive form of a state recovery. That being said, I like to reassure people that there's absolutely never any recovery while either spouse is living. 

So another misconception we have is if a spouse goes on to Medicaid and then dies, and they'll come after the house again, but as long as you have a living spouse, there's no recovery until both spouses are deceased. And then even within that, there's some exceptions. If you have a disabled child that survives you, there's not supposed to be any estate recovery, and there are supposed to be undue hardship waivers for heirs who are facing e  state recovery, but themselves are in poverty. 

So yes, we do have a state recovery. Yes, it comes up, but it's an issue for the heirs after both partners are deceased. It's a very complex issue, too, because it's state specific, and so it's definitely an area where you want to consult with somebody who knows how to evaluate the validity of a claim.

Whitney Yazzolino  30:45

But I think it's fair to say that if you have a single person who is on Medicaid, they have qualified because they have $2,000 or less in countable resources.

Shoshawna Rainwater  30:55  

Is that what the limit is still?  I remember, like 30 years ago, that's what it was.

Julie Meyer Rowett  31:01

It’s never changed since we’ve been practicing law.

Shoshawna Rainwater  31:04

Wow, okay.

Whitney Yazzolino  31:06

But that claim is payable out of the assets of the Medicaid recipient. And so oftentimes, adult children will ask, “Well, gosh, if mom or dad was on Medicaid, can Medicaid come after the family?” And the answer is “no.”  Of course, there's exceptions if assets were transferred or there was fraud involved, but the family is not responsible for a Medicaid claim. It's payable out of the Medicaid recipient’  s assets. And then it's definitely more complex. If you have a married couple.

Shoshawna Rainwater  40:19

Okay, all the more reason to consult with an elder law attorney who really understands these nuances. Do you feel like it's ever really, truly too late to protect assets? 

Julie Meyer Rowett  31:53

No. 

Whitney Yazzolino  31:54

The exception would be if someone hasn't consulted with an elder law attorney and then their loved one goes into care; then they consult with the lawyer, and they realize they spent the assets down when they could have protected them. So that's when it's too late, is when they haven't taken the opportunity to protect them.

Julie Meyer Rowett  32:16

Yeah, but we are fortunate enough in Oregon that even we have instances where someone has not done a Power of Attorney and no, it's too late where we are able to get court orders to protect assets for that community spouse. It's a little bit more complex, a little more expensive, because we have to go through the courts, but we are, fortunately, especially here in the Portland area, able to accomplish that through our conservatorship proceedings.

Shoshawna Rainwater  32:44

I have spent the earlier parts of my career, much like you folks have, in that Medicaid space. And it always felt to me like they're very much looking for the disqualifying aspects of a situation; not actively trying to get people on service but rather, what has this family or person done that would disqualify them? So how careful should people be about how monies get spent and things get gifted?

Julie Meyer Rowett  33:10

They need to be very careful, because Medicaid does look back five years, and now, with the advent of they now do electronic checks as part of a Medicaid application. So any sort of gifting, really, if you're elderly, should be done in consultation with your attorney, because you can have unintended consequences of impacting your eligibility for Medicaid later.

Gina Goddard  33:34

I know Julie mentioned this, too, that there could be options for in-home care. But where that can get tricky is when the level of care is higher than the care that you may get approved by Medicaid. And so you are forced to look at options outside the home. So there may be this idea, “oh, I'd like to keep my spouse in the home,” but the realities of that when you're looking at using Medicaid long- term care may not be feasible.

Shoshawna Rainwater  34:10

The amount of hours allotted, that brings in support are not enough?

Gina Goddard  34:14

Exactly.

Shoshawna Rainwater  34:15

That's been a long standing issue. I've heard from families, yeah.

Whitney Yazzolino  34:20

Well, it's a cost/benefit analysis. It's a pretty widely used program, and they're going to look at, how much does it cost to provide care in home to that individual? And if it's excessive, it's going to be more affordable to pay for that care in an adult care home. So it comes down to the dollars and how they're going to be best financed, I think, to serve as many people as possible.

Music transition

Shoshawna Rainwater  34:54

What I'd love to hear your wisdom on is, does the Advanced Directive or the Power of Attorney give families, or the person assigned,  the ability to move an individual once they have lost capacity. Are those documents enough?

Whitney Yazzolino  35:14

I think it depends. The Power of Attorney certainly doesn't grant authority to make placement decisions. The Advanced Directive, the document itself, on its face, does not address placement. But if you look at the statute and the authority listed in the statute itself, then the healthcare representative may make placement decisions. But the problem is, if the person is not compliant, then a facility is not necessarily going to participate in that because the person hasn't been deemed incapacitated, and they can still make their own decisions. 

So if you have someone who I use the term “pleasantly demented”, and the healthcare representative finds a good facility, you can usually facilitate that transition; but if the person doesn't want to go, then I think your option is a guardianship through the court so that you have explicit authority to make placement decisions. And even then, it's not a pretty situation, because you're forcing someone to go into a facility where they don't want to be; so just having the authority to make that choice doesn't make it easy.

Shoshawna Rainwater  36:25

Yeah. I think once guardianship is in the picture or on the table, I don’t want to say the wheels have come off, but usually it's that's sort of our last resort, right?

Whitney Yazzolino  36:37

It should be.  

Shoshawna Rainwater  36:38

I also, in my career, had families describe themselves as “guardians,” so “I'm his guardian,” but that is a very specific process that involves going in front of a judge. Is that correct? Then that has paperwork and a yearly sort of report that they have to do, and oftentimes people are calling themselves guardians, but have not actually been given that authority; it's a very specific role, right?

Whitney Yazzolino  37:06

Well, I think it k ind of speaks to what we started off at, right? Family members? Oh, you know, I'm his Power of Attorney, or I can make the decisions, and just not understanding that a guardian is appointed by a court. It's a legal process.

Shoshawna Rainwater  37:22

Yeah, it's a big deal. And it does have a high price point, too, and it's public and it's yeah, if we can avoid it, it seems like it would be prudent.

Whitney Yazzolino  37:33

Well, we're required to under the law, we have to look at the least restrictive alternatives. We can go to a court and ask for a guardian to be appointed.

Julie Meyer Rowett  37:44

Yeah, actually put that in our petition, how we have exhausted other routes besides guardianship,

Shoshawna Rainwater  37:51

Yeah, and that's a good thing. I think we should all feel assured by that, right, that we're not just sort of slapping guardianships on people without a lot of consideration; and it really is kind of a last resort when all other less restrictive options have failed.

Whitney Yazzolino  38:06

Or they're not available.  

Julie Meyer Rowett  38:08 

The other thing I might mention about Medicaid is people who themselves have adult disabled children, that's a big area of planning for us where they've been caring for their disabled children, and there's a lot of options out there. There's a lot of good planning options out there, including exemptions where we're able to set up trust for them and not affect Medicaid eligibility, things like that. And so that can be a big area where, and it's a concern for a lot of people, as they're aging and they've been caring for their other lives, making sure they're set up for their future. It's important, and again, the planning aspect coming in sooner, to come up with a plan of how to set that disabled child up for success as they're aging themselves and can't do as much as they used to do. 

Shoshawna Rainwater  38:52

Right. Yeah, that makes so much sense. Last question, I'd love to hear from each of you: the name of this podcast is Hope Floats and in a landscape as challenging as dementia, we really do try to find something hopeful in every episode about whatever it is we've been talking about. And my question for the three of you is, when you think about this landscape of Elder Law and planning for the future, what do you feel hopeful about, or what should our listeners feel hopeful about? And maybe I'll start with you, Gina.

Gina Goddard  39:25

That's a good question. What I would say is that, and this is where I think Whitney started, is it doesn't have to be fear-based when you are facing these issues. There are tools, there are resources out there for you and your family to be able to navigate this and feel supported in doing so. And sometimes it's just a matter of asking questions or asking people and finding those resources and those opportunities. It doesn't have to be scary. And, I really appreciate this podcast that you're doing for that very reason. You are reaching a large audience that you know needs this type of support. So that's where I think the hope lies. 

Shoshawna Rainwater  40:15 

Yeah, great. Whitney and Julie?

Whitney Yazzolino  40:19

Well, I think, kind of going off what Gina said is that we each, as individuals, have an opportunity to have a voice, right? And my youngest clients for estate planning are 18.  Their parents have been clients, and after learning about estate planning and kids going off to college, they have their kids come in on a separate consultation, and we do Power of Attorney and Advanced Directive. And so I think that having that voice and appointing people through estate planning, who we want to act for us, people who we know, people who we trust and can speak for us. I think that's pretty powerful. 

And I think on the Medicaid piece, for married couples, knowing that there are protections, right? There's some really strong protections for spouses in the community. Like Gina said, moving forward and asking questions and tapping into resources, I would hope that gives people hope.

Shoshawna Rainwater  41:22

I know that it does for people to not feel so trapped or hopeless about their situation. Dementia Care in the day-to-day for caregivers is hard enough, but to know that they can feel hopeful about some of these pieces that we've talked about today is huge. Julie, how about for you? What would you add?

Julie Meyer Rowett  41:41

Just seeing the hopeful part of the families, that sometimes we have the ability to work with these families that are just amazing, that surround their loved ones with support. It's not just the spouse, but it can be the adult children; and I mean, yes, we have cases where there's conflict and court involvement, but then we have a lot of cases where there's none of that, because the families are there supporting their loved one throughout that process, and how affirming that is to work with those kind of people. And I would say most people are like that. They really do the best for their family members, and are trying their very, very best to do that.

Shoshawna Rainwater  42:16

Aren't they? Aren't most people just doing the very best they can in this really challenging landscape. If folks in this sort of Portland metro area want to find you and work with you, how would they go about that?

Whitney Yazzolino  42:31

Well, our firm is Oregon Elder Law, and they could give us a call and talk with our staff to set up an appointment.

Shoshawna Rainwater  42:39

Great, and we'll put that in the show notes listeners, along with some other resources. For folks who are not in the Portland metro area, would the National Academy of Elder Law Attorneys website be a good starting place for some folks? 

Whitney Yazzolino  42:55

That’s an excellent starting point.

Shoshawna Rainwater  42:57

Okay, we'll put that in the show notes, as well, listeners. 

So, today we talked about elder law and the importance of planning for incapacity,  and affordability and options for long-term care planning in the setting of a dementia diagnosis. We met with Whitney Yazzolino, Julie Meyer Rowett and Gina Goddard today, and heard their wisdom and expertise about how to navigate this challenging and complex landscape. As always, thank you for listening, and we'll see you again soon. 

Rachel Coady  43:37

You can always reach out to us here at Hope Floats with your questions or with topics you'd like us to discuss on the podcast. We're here if you want to share your experiences, and let us know what could help you navigate this journey. We want to support you.

Shoshawna Rainwater  43:51

You’ll find us at our website hopefloatspodcast.com.  When you’re there, you can learn more about how to work individually with Rachel or Shoshawna for support with your specific circumstances or situation. That’s also where we’ll share more tools, resources, and libraries that can help people on this journey.

Rachel Coady  44:09  

Never miss an episode of Hope Floats by following us wherever you listen to your podcasts and join our community at hopefloatspodcast.com.

SHOW NOTES:
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Summary:

This episode features elder law experts discussing planning for incapacity, legal documents, and long-term care options, emphasizing the importance of early planning and legal safeguards.

KEY words:

 keywords

Elder Law, Incapacity Planning, Long-term Care, Medicaid, Power of Attorney, Advanced Directive, Guardianship, Estate Recovery, Dementia, Spousal Protections

 key  topic”s

Planning for incapacity and legal documents

Long-term care options and affordability

Medicaid, estate recovery, and spousal protections