Fairfield Elder Law and Estate Planning Attorney, Amy E. Todisco, has comprehensive and extensive experience in assisting families in Connecticut develop long-range plans for the management of their medical care and estates. Contact Amy if you would like to schedule a confidential consultation to discuss your situation and develop appropriate estate planning strategies.  She will take the time to discuss all of your options with you.

Durable Powers of Attorney

A power of attorney is one of the most important estate planning documents you should have. A power of attorney allows you to appoint someone to act for you in financial matters (your “attorney-in-fact”) in the event you are unable to act for yourself. If you do not have a power of attorney, and are unable to manage your financial affairs, a conservator will have to be appointed for you by the Probate Court. Conservatorships are not private, as are powers of attorney; all financial transactions will be required to be disclosed in accountings and the conservator will have to obtain permission from the Court to act on your behalf in many instances. At Braunstein and Todisco, P.C., it is our mission to insure that your wishes are self-directed and that you maintain autonomy in your decision-making and not have a Probate Court determine who will manage your affairs.

Health Care Decisions and Advance Directives

The term “advance directives” in Connecticut refers to documents you sign which appoint an individual to make medical decisions for you and to communicate with your health care provider in the event you are unable to do so for yourself. We at Braunstein and Todisco, P.C. have prepared the following information in an easy and informative question and answer format to assist our clients in understanding the importance of executing an advance directive:

ADVANCE DIRECTIVES AND HEALTH CARE PLANNING IN CONNECTICUT

1. What is an “advance health care directive?” An advance health care directive is a legal document which expresses your wishes concerning health care decisions, and appoints an individual to express your health care wishes in the event that you are unable to do so yourself. 2. What “advance health care directives” are used in Connecticut? There are two forms of “advance health care directives” used in Connecticut: the “Living Will”, and “Appointment of Health Care Representative.” A “living will” is a document which states your wishes regarding any aspect of your health care (including the withholding or withdrawal of life-support systems if you have a “terminal condition” or are “permanently unconscious”), when you are unable to understand and appreciate the nature and consequences of health care decisions, and to reach and communicate an informed decision regarding treatment. “Terminal condition” means the final stage of an incurable or irreversible medical condition which, without the administration of a life support system, will result in death within a relatively short period of time, in the opinion of the attending physician. “Permanently unconscious” means an irreversible condition in which the individual is at no time aware of himself or herself or the environment and show no behavioral response to the environment and includes permanent coma and persistent vegetative state. — A “living will” is not a Last Will and Testament and is not a “living trust”. A “living will” states your wishes regarding your health care while you are alive; a Last Will and Testament disposes of your assets after your death; and a “”living trust” is a legal document you create to transfer assets into to be held by a trustee for distribution under the terms of the trust. “Appointment of Health Care Representative” is a document in which you appoint another individual to make health care decisions for you in the event you are unable to make those decisions for yourself and to carry out your wishes under the “living will.” 3. Why should I have a “living will” and appoint a health care representative? As long as you are capable of making your own medical decisions, you have the right to receive or refuse medical treatment. However, if you are in a coma or have Altzheimer’s disease or have some other condition which prevents you from being able to communicate with your doctor about your own health care decisions, you need to have a written statement of your wishes and appoint the individual who is to carry out your wishes for you if and when you are unable to do so yourself. If you don’t have a “living will” and you don’t appoint a health care representative, your family and medical providers may disagree as to the care which should be provided to or withheld from you, and decisions may be made which are contrary to your wishes (we all remember the Terry Schiavo case). Further, your loved ones will have the burden of making medical decisions without knowing what your wishes would have been under the circumstances. As in the Terry Schiavo case, an otherwise very private family matter could result in litigation and become a very public matter. 4. When does a “living will” become effective? A “living will” is valid as soon as it is signed, but it cannot be used as long as you have the ability to communicate your own health care wishes to your doctor and others; when you are “incapacitated, the “living will” becomes effective. 5. When is a patient considered “incapacitated” so that the “living will” becomes effective? Under Connecticut law, you are “incapacitated” when you are “unable to understand and appreciate the nature and consequences of health care decisions including the benefits and disadvantages of such treatment, and to reach and communicate an informed decision regarding the treatment. 6. Who decides if I am “incapacitated” for purposes of invoking the “living will”? Your attending physician will make that determination (i.e. your doctor or a doctor assigned to you and who has primary responsibility for your treatment and care). 7. What if my doctor or health care provider refuse to honor my wishes? If a doctor or hospital is unwilling to comply with your wishes, Connecticut law states that you are to be transferred to a doctor or health care provider who is willing to comply with your wishes. 8. What if I have appointed a health care representative, but a situation arises and my health care representative doesn’t know my wishes in that situation? Your health care representative is required to first make decisions on your behalf in accordance with your wishes, either as stated in your “living will” or as otherwise known to him/her. In the event a situation arises that you didn’t anticipate, your health care representative may make a decision which is in your best interest ( but ultimately not necessarily what you would have wanted to happen in that circumstance). 9. How can I insure that my health care representative will carry out my wishes? Selecting the individual who will have ultimate authority and responsibility for your health care decisions when you are unable to make those decisions yourself is very important. It is critical that you discuss your wishes and opinions regarding various health care matters with your health care representative in advance so that your health care representative will know or have a good idea about what your wishes are in the event a situation arises that is not clearly stated in your “living will.” It is also a good idea to appoint an alternate health care representative in the event the person you initially appoint can’t or won’t serve when the time comes, or in the event he/she predeceases you. 10. Do I need a lawyer to do a “living will” and appoint a health care representative? No. Connecticut law states that as long as the “living will” is in substantially the statutory form, you can use any form you want. However, to be valid, any form that is used must be signed, dated and witnessed by two people. In addition, since Connecticut health care providers are most familiar with the Connecticut statutory form, if the Connecticut statutory form is used, there is less likelihood that your wishes will be misunderstood. It is therefore advisable that you seek the advice of an attorney and execute the “living will” and appointment of health care representative in the presence of an attorney to avoid your “living will” from being declared invalid, misunderstood or both! 11. What do I do with my “living will” and appointment of health care after I sign it? A copy of each document (or the combined form, if that is used) is to be given toyour primary care physician, to your family, and to the individuals you have named as your health care representative and alternate health care representative. Your doctor will make the documents part of your medical records. The original documents should not be put into a safe deposit box at a bank, but rather kept in a safe location for easy access in the event the original documents are needed any day of the week, at any time during the day or night.

Last Will and Testament

This document is filed with the Probate Court at the time of your demise and is your direction as to how assets owned solely in your name will be distributed. A Will does not have any legal effect on the distribution of assets which you own jointly with someone else (those assets will automatically be distributed to the joint owner at your death), nor does a Will have any legal effect on the distribution of assets in which you have named a beneficiary (such as on a life insurance policy or IRA; the named beneficiaries on those assets receive the death proceeds of the life insurance policy or the IRA, regardless of what your Will says). It is critical for everyone to have a Will in order for your estate to be distributed to and inherited by the people who you want; if you die without a Will, the laws of intestacy of the State of Connecticut set forth who are the beneficiaries of your estate—oftentimes, those are not the individuals whom you would choose to inherit your estate. If you have an ill spouse at risk of needing long term care in a skilled nursing facility or home health care services at home, you must execute a new Will to insure that in the event you die first, your assets do not pass to your ill spouse. Only a knowledgeable elder law attorney such as Amy E. Todisco can counsel you in this area.

Medicaid Planning and Asset Protection Strategies

As a result of the passage of the federal law known as the Deficit Reduction Act of 2005 (the “DRA”), we at Braunstein and Todisco, P.C. are counseling clients to begin considering asset protection strategies to protect against the cost of long term care sooner in their lives rather than later. In Fairfield County in 2009, the daily rate at a skilled nursing home facility can be between $375 and $450/day. If you haven’t planned for long term care, all your assets may be risk to pay for your long term care in a nursing home before Medicaid/”Title 19” will pick up the cost of your care. The best time to plan for future needs is while you and your spouse are both still young and healthy. The formulation and implementation of early planning can insure that your assets are preserved for yourself, your spouse and/or your children. Planning for our clients at Braunstein and Todisco, P.C. is very specialized and tailored to meet individual client needs and circumstances.

Applying for Medicaid/”Title 19” and Appeals

If you or your spouse are told that you will require long-term care, 24 hours/day, 7 days/week and you are in a nursing home or at home, we strongly recommend that you consult with an experienced elder law attorney such as Amy E. Todisco to assist you with the financial aspects of paying for long term care and the filing of a Medicaid/”Title 19” application. We at Braunstein and Todisco, P.C. never recommend that you let a nursing home social worker assist you in preparing a Medicaid/”Title 19” application for you. Medicaid applications are never “simple” and should not be treated as such. Employees of nursing homes do not have the legal knowledge of Medicaid laws, and do not know to look for (and are not interested in) issues in your financial documents which could potentially result in the denial of a Medicaid application the way a knowledgeable elder law attorney does. Nursing homes have been known to neglect requests from the Department of Social Services for information, resulting in denials of Medicaid applications; they then turn around and sue you for the unpaid cost of your or your spouse’s care because they ignored the State’s request for information! Furthermore, a Medicaid application provides the detail of your financial history and needs to be prepared as if it was a case to be tried in Court. If your application for Medicaid is not prepared by a knowledgeable elder law attorney and the application is denied, depending on the facts or your case, you may not prevail at a fair hearing (an appeal to an administrative body at the Department of Social Services). Always contact a knowledgeable elder law attorney such as Amy E. Todisco before filing a Medicaid application.

Nursing Home Admissions

The nursing home admissions process can be overwhelming and confusing. There are countless forms to sign and information to provide. If you are not the nursing home resident, beware before you sign any documents on behalf of your spouse, your mother, father or any other person. Nursing homes admissions offices will often tell family members that the admissions documents they are signing are “for notification” purposes, when in fact that those documents may be making a family member financially liable for the resident’s cost of care! The best thing to do is to have the resident sign his/her name on all documents, however illegible, and whether or not the person is capable to understand what he/she is signing. If that is not possible and you have to sign for the resident, sign the resident’s name and then sign your name with the words “attorney in fact” after your name if you have power of attorney. Never sign your own name on anything that has the words “Responsible Party”—if you do, you have just guaranteed the payment to the nursing home for the resident and you can and will be sued for non-payment! Always consult a knowledgeable elder law attorney such as Amy E. Todisco to review any admissions documents before you sign them.

Special Needs Trusts for Disabled Persons

Special Needs Trusts, when properly drafted, allows for the grantor to provide for the needs of a disabled spouse, child or other person without the disabled person losing his/her public assistance benefits. If the grantor himself or herself is the individual going into a nursing home and applying for Medicaid/Title 19, under certain circumstances, the grantor can establish a special needs trust for the benefit of a disabled child and transfer the grantor’s assets into that trust without effecting the grantor’s or disabled child’s eligibility for Medicaid/Title 19. Special Needs Trusts can also be used to preserve an individual’s public assistance benefits if the individual receives an inheritance, or wins a lawsuit.

Involuntary and Voluntary Conservatorships

If an individual is unable to manage his/her affairs, or is unable to manage his/her person, and the individual does not have a durable power of attorney and advance directive, an application for involuntary conservatorship will need to be made to the Probate Court in the jurisdiction where the individual resides for a conservator of the person and estate to be appointed. In other states, a conservator is known as a “guardian”; Connecticut uses the term “conservator.” An adjudication by a Court that the individual is unable to manage his/her affairs, and/or is unable to manage his/her person, will result in the individual losing his/her rights with regard to certain or all aspects of his/her person or affairs, and those rights being vested in the conservator. There are times when, although a durable power of attorney exists, it is deemed prudent to have the Probate Court assume jurisdiction over an individual’s person and/or affairs at the individual’s request. This is accomplished by the individual filing an application for voluntary conservatorship with the Probate Court. The individual chooses his/her conservator and the conservatorship can be terminated at any time by the individual upon giving the Court 30 days notice. Elder Law and Estate Planning Law Attorney, Amy E. Todisco, a member of the firm of Braunstein and Todisco, PC, provides legal counsel to businesses and families in the greater Fairfield, Connecticut area, including the communities of Ansonia, Bridgeport, Derby, Easton, Milford, Monroe, Norwalk, Ridgefield, Shelton, Southport, Stratford, Trumbull, Weston, Westport and Wilton.