by Lori Myers
This is Part II of a series that informs about the realities of living old in this country – a country where families may be spread out over thousands of miles, where healthcare might be administered in one’s own home or elsewhere by strangers, where costs of healthcare and home aides keep rising at an alarming rate.
Part I told the story of Mike Moser whose father, a highly regarded orthopedic surgeon, began to experience memory loss. When told by Moser and his siblings that he needed to retire from his medical practice, their father became defiant and angry.
Moser made certain that his parents had long-term health insurance, a welcome safeguard that would prevent the family from having to make difficult decisions regarding the selling or redistribution of investments, and a means that would make sure the healthy spouse would have enough money for day-to-day living. But as it turned out, they never had to use it…
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There was no way for Moser to avoid it any longer. His father’s condition had progressed to the point where it would be too dangerous for him to perform surgery – an opinion shared by a former partner in the medical practice and some friends. It was up to Moser to sit his father down and tell him. It was a task that Moser dreaded. Around his parents he was always the kid. But now the tables were turned. The son would be the one giving advice to the father instead of the other way around.
“I was crying,” admits Moser. “I didn’t feel like a son anymore. I felt like the bad guy. I had to help them understand what the situation was and what to do.”
Moser brought up two matters with his father. One was for him to retire before he endangered his patients. The second was to move his parents from their small New England town to San Diego where Moser lived. This was not the first time Moser had 
brought up the subject of having them move across the country.
“I had always encouraged them to come out here because my mother had leg and ankle problems,” Moser says.
Through the help of a realtor, Moser found some homes for his parents to look at, but soon realized that they couldn’t live on their own. After apologizing to the realtor, Moser switched his search from single-family homes to continuing care retirement communities. He and his parents whittled their choices down to three facilities. One place had a two-year waiting list after which his parents would have to take a physical exam and have to qualify. That wouldn’t seem likely based on his parents’ declining health. The second community was building new units, which wouldn’t be move-in ready until two years later. But the difference between this community and the first one the family looked at was that the health exam could be taken now without a re-test.
“The salesperson there had a father with the same disease as mine,” recalls Moser. “My mother was able to pick the unit they wanted and they put $2,500 down. Two months later they had to put down an additional 20 percent.”
Taking Care
Moser made sure his siblings – a brother in Maryland, and a sister in San Francisco – were kept updated on all the activities and decisions regarding their parents. He did the right thing, according to Sara Krueger, spokeswoman for Sunrise Senior Living that operates more than 440 senior living communities throughout the United States, Canada, the United Kingdom, and Germany.
“Any decision about senior living, whether it’s a senior thinking about moving, or an adult child considering help for a parent, should include communication with the entire family,” Krueger explains. “Knowing how to recognize the right time for these types of decisions comes down to the kind of living arrangement that is needed. Some seniors choose to stay at home. Others require some kind of specific care. While others consider senior living solely on their changing lifestyle, such as escaping the upkeep of a house, or being with others who have similar interests.”
Krueger says that many times, people make the choice about living arrangements after an event such as a fall, stroke or when the family is concerned about safety, as was the case with Moser and his parents. It would have been better, she advises, for the senior to benefit from some sort of assisted living prior to the event. Some 
residents have excellent health when they enter assisted living, allowing them to enjoy the social and service benefits available there.
“Certain states have rules that prohibit individuals with certain medical conditions from living in assisted living,” she says. “It’s important for consumers to begin exploring senior living options well before they’re needed, which provides the opportunity to visit several communities on more than one occasion.”
The transition from one’s home to an assisted living facility, which sometimes might be in an unfamiliar locale but close to a family member, can be difficult, but it can also be a positive one if it is a good match for the individual. A senior’s needs, both emotionally and physically, as well as their expectations, need to be considered when choosing assisted living.
With that said, consumers need to ask a myriad of questions before considering if the facility if right for them or their family member. According to Krueger, the following are some questions that should be asked:
- Will the community be able to provide the level of care needed?
- Have the team members/staff been trained appropriately to care for those specific needs?
- Do I like the location of the community, in reference to my family, friends, or other places that are important to me?
- Will this community continue to meet my needs as they change over time?
- Will the community provide the services that I am looking for?
What kind of personalized attention will I receive?- How is each resident’s service plan determined? Are the services customized to each resident’s needs and preferences?
- Are the team members/staff warm when I meet them?
- Does this place feel homelike and a place where I would feel comfortable?
- Do I like some of the activities that they offer, inside and outside the community?
- Is this a place where I will meet people that have common interests?
- Do the current residents look well cared for?
“Several of our communities offer short-term stay options so people interested in sampling life at the community have the option of doing so without the long-term commitment,” Krueger says.
Moser and his family did the right thing by doing their homework and taking tours of the facilities they were interested in. Consumers should speak not only to staff members, but also to residents, participate in an activity, and have a meal or two in the dining room. Get to know the “feel” of the building, the residents, staff, and the community in order to make sure it’s a good match.
The Legal Side Of Things
Advanced age also brings with it lots of paperwork and questions about who makes the decisions about himself or herself and his/her financial affairs. As long as the aging and infirm parent retains competency then all rights remain with them.
“This can become a huge and acrimonious issue,” explains Bradford N. Dewan, attorney-at-law with Miller, Monson, Peshel, Polacek & Hoshaw in San Diego. “The healthy spouse often can act for and on behalf of the infirm spouse. But if there is no healthy spouse then the children may have to make a decision regarding applying to the court to have a conservator of the person and maybe a conservator of the property appointed by the court. This is an adversarial proceeding. The aging parent may feel that he is fully competent to make all decisions, whether medical decisions or decisions regarding his property. The children may feel otherwise because of certain actions or inactions.”
This is where various documents can play an important role, says Dewan. If there is a Revocable Living Trust, then if one spouse becomes incompetent, then the other spouse can serve as sole trustee of the Trust. With an Advanced Health Care Directive, the healthy spouse is appointed agent to make medical decisions when the other spouse is no longer able to make and express medical treatment decisions. With a Durable Power of Attorney, the healthy spouse is the agent who can make decisions regarding all property of the aging spouse, again when such spouse is no longer competent to make decisions such as selling or purchasing property, for instance. This issue of “competency” is often the decision of two physicians or a physician and the other spouse.
“Competency” also comes into play if a spouse or parent refuses to enter an assisted living facility or a nursing home. If competent, according to Dewan, a person cannot be forced to leave their home and enter an assisted living or nursing facility. If the parent refuses to go, then the child has to consider the pros and cons of seeking a conservatorship, a proceeding that can be emotional and very detrimental to the relationship between the parent and the child.
“The role of the attorney is to advise the child what the options are, including a conservatorship proceeding,” says Dewan.
“Alternatively, the attorney may represent the parent in the proceeding to present the case that the parent is competent and there is no need for a conservatorship. At times, an attorney may be appointed by the court to represent the parent.”
Dewan recommends that everyone should have the following documents in order before proceedings of this type tear a family apart:
- Revocable Living Trust – This avoids probate upon death and also if structured properly, can fully utilize each spouse’s “applicable exclusion amount” in order to minimize, if not eliminate, federal estate tax. It also may provide a successor trustee so that a conservatorship can be avoided.
- Pour Over Will – If a Revocable Living Trust is used, then this document simply states that any assets that go through probate, because they were not transferred into the Revocable Living Trust, will “pour-over” into the Revocable Living Trust upon the conclusion of the probate.
- Living Will – This allows an individual to state clearly their directives and preferences regarding medical care when incompetent. It relieves the family members from having to make those very difficult decisions. “But a limitation,” says Dewan, “is that the Living Will does not discuss nor contemplate all of the possible medical conditions that may arise.
- Advanced Health Care Directive – Under this document an agent is appointed by the Principal to make all medical decisions when the Principal cannot. Thus the Agent will be able to make decisions on behalf of the Principal in situations not covered by the Living Will.
- Durable Power of Attorney – The agent is given authority to make decisions regarding the property of the Principal either when the Principal is absent, traveling and/or is incompetent and not physically or mentally capable of making those decisions.
- Beneficiary Designation Forms – These forms dictate who will receive the assets, such as funds in an IRA or pension plan, upon the death of the Principal. These must be carefully reviewed to make sure that the real wishes of the IRA owner will be carried out. “One of the biggest issues is whether the assets will be distributed to the designated beneficiaries on a per capita or per stirpes basis,” says Dewan. “There is a very important distinction between the two.”
The best advice Dewan can offer, along with making sure all paperwork is in order, is for the spouses and parents to begin contemplating their later years and initiate some planning. Proper planning, he says, will allow the power of decision-making to be transferred in a desirable manner and to those specifically selected. It will also avoid those adversarial proceedings of conservatorships, plus reduce the stress and uncertainty related to medical decisions.
“With proper planning, parents can make sure that their assets and financial legacy will be passed down to children and grandchildren as they desire rather than by the “default” rules of the various states,” Dewan says. “Proper planning will also result in estate taxes being minimized if not eliminated.”
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Mike Moser’s story ends tragically. The year after deciding on the assisted living facility in San Diego, his mother died suddenly from a heart attack. The siblings decided that their father would receive better care near other family members in Virginia and made arrangements for their father to live there. But their father died three weeks later from kidney failure as a result of Pick’s disease, a degenerative brain disease that causes dementia.
Moser says that even though his father’s long-term care insurance was not used, he’s glad it was there for him if he needed it. His father also had a living will in place. Moser and his siblings donated their father’s brain to a medical school for research so that it might help others.
The family prepared as best they could under the circumstances. “You need to plan in advance,” Moser says. “Discuss the options with your parents before there’s a problem. With his dementia, there’s no way we could have taken care of Dad.”