Legal Issues Concerning Dementia

with Melissa Smith-Wilkinson & Sara Traub
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Join us as we speak with Sara Traub CPA. Sara’s practice focuses on estate planning, and also includes probate administration, guardianships & conservatorships, disability planning, elder law, and taxation. Sara is actively involved in professional and community organizations. Sara represents the third generation of her family to become a New Mexico attorney. 

Find her here:https://pbwslaw.com/our-team/sara-r-traub-cpa/

FB: https://www.facebook.com/PBWSLaw/ 

LinkedIn: https://www.linkedin.com/company/pregenzer-baysinger-wideman-&-sale-pc/ 

Twitter: @pbwslaw

Melissa Smith-Wilkinson
All right. So welcome, everyone. I am Melissa with Caregiver Wellness Retreat, and we are here today with a really special guest. And I have been looking forward to this conversation because this kind of topic is something that I generally, like a lot of us do put in the closet and don't want to think about and don't want to talk about big or hard topics like end of life or what will or trust or guardianship or all of these things that are sort of big bucket things. And it's so much easier just to do what am I going to eat for lunch instead than think about the challenging questions? So we have Sarah Traub here with us today CPA, and she's with... I'm going to blow it right off the bat. Sarah, I'm going to go ahead and ask you to say it so that I don't blow it.

Sarah Traub
Okay. So I'm a CPA but I'm primarily an attorney at Pregenzer, Baysinger, Wideman & Sale

Melissa Smith-Wilkinson
Thank you so much. I say that, and I appreciate that I fumbled to that because it just means I'm human I hope. Because even when you practice, something doesn't always come out the way the words you want them to so thank you for your Grace on that. Yes, Sarah primarily works with estate planning, probate guardianship, elder law and so those are some of the topics that we'll be talking to her about today. And so I am really kind of geared myself up for this because this isn't an area that I feel really well equipped in, and I would imagine a lot of our caregivers probably feel very similarly. We were chatting before we started, wellness-based why are we even having this conversation when the primary mission of Caregiver Wellness Retreat is really wellness based? But for us, the wellness piece is anything that we can do in our lives as a caregiver or caring for another person even caring for ourselves is to decrease our stress. And one of the biggest stressors is this big piece of future things out of our control, the unknown. And what's really wonderful about this is that planning does put you in the driver's seat and brings back that sense of control and everything else that feels out of control. So I'd love to ask you what you do to take good care of yourself in terms of wellness.

Sarah Traub
Well, I have a six year old, as I mentioned to you when we were talking earlier, and so I don't get a lot of free time. So I try to make the most of spending time with my daughter and getting exercise at the same time, which actually isn't very hard to do because she runs a million miles an hour, but that I don't necessarily have time to go do a yoga class every other day would be lovely. But I can get her to do yoga for ten or 15 minutes or go run around in the field behind her house or walk around the block or something like that that I used to get frustrated like, I want to go do that on my own or I want to have time to do that. And then I just realized like, well, there's really good opportunities to do that and also be together. For me, that's been that a good realization that I can get what I need while also getting time with my daughter.

Melissa Smith-Wilkinson
That's beautiful. I think I'm certain all of us can relate to that in regards to, you know, how do we do what we need to do, but also nourish ourselves. We sort of pick out these little strategies, and I'm really happy to hear that you have that little strategy. I remember when my kids were that age. I got to say that I never thought I would say this, but I miss that now. Little kids, little problems. So I really do miss that running around. That's awesome. Well, I wanted to ask you so kind of just as a little bit of a starting point here for specifically for caregivers of Alzheimer's or other dementia. What are some primary things that we need to be considering in the legal realm? What are the big questions that you usually come across?

Sarah Traub
Well, I think if there's just one big take away from our discussion today is I would encourage caregivers and families to plan if they can. A lot of times I have families come in and they say, oh, we just got this diagnosis can we still do planning? And, you know, the answer is always it depends. Depends on how the individual with dementia, how they're doing and if they can still participate in the planning process. But most of the time I would say they can. And that planning, like you said, puts people in the driver seat more so than reacting to a situation that it's too late to do any planning. Okay, so plan if you can. To me, a diagnosis is not like a wall that says you can't do planning beyond that, it's just a matter of whether or not the individual with dementia can still appreciate the idea of appointing someone to help them and moving forward with that. Doing powers of attorney is a lot easier and less expensive than the alternative of doing a guardianship or conservatorship through the court later.

Melissa Smith-Wilkinson
So that's a great question. So they would need to still have capacity to do the POA. Correct? Your power of attorney. Can they have a dementia diagnosis but still have clarity and still be able to do the POA?

Sarah Traub
Yes they can. So having capacity to maybe handle everything in their life is not there but in terms of them being able to sign a power of attorney, they just have to appreciate and understand what they're doing, the power that they're giving someone. So it boils down to are you interested in naming someone to make financial decisions for you, if you can't make them for yourself? Or are you interested in naming someone to make medical decisions for you if you can't make them for yourself? And if they can say yes to that, then we say, okay, well, who would you like to do that for you? And if someone is able to tell me that they understand and they can do that, which is not to say that in a situation where people want to fight, but that will solve that. Because you don't need dementia in the picture for family's who want to fight, fight. But in general, I would say that most of the time that's not the circumstance that anyone wants to fight or dispute things. They just want to be able to get stuff done. And as a caregiver, if it's easier for you to get access to health care information, to be able to help make a decision or access to financial resources, to be able to find a proper placement for someone that's making your job as a caregiver easier.

Melissa Smith-Wilkinson
Absolutely. Now, is that the same document, the medical power of attorney and the power of attorney? Those are the same or different?

Sarah Traub
We usually do different forms, and we're in New Mexico. I'm in New Mexico we do a separate form. I've seen people with kind of combined forms, but we typically do a separate form for health care decisions in a separate form for financial, oftentimes because people have different people in mind to do those jobs. I mean, not always. Sometimes they do. Sometimes they don't.

Melissa Smith-Wilkinson
Right. And what is, I feel very lame, what is the difference between the power of attorney and durable power of attorney?

Sarah Traub
That's a good question and to me in a way, it's like a little bit of a silly distinction, but apparently it was an issue at some point that that needed to be clarified is durable, just means it withstands your incapacity. Which is kind of like well, of course, isn't that why we want it. But I don't know exactly what the history is on, why we call them durable, but that's all it means that it withstands your incapacity. And so I guess another point I wouldn't mind making is when I do powers of attorney for individuals, I prefer that they be effective upon signing so that the caregivers aren't having to jump through Hoops to prove that now the time has come for this to be invoked. Okay. Because really, a health care provider is going to keep taking instruction from an individual if they believe they understand and appreciate what their treatment options are. And then they're going to turn to an agent under power of attorney if they don't feel like they can appreciate what their treatment options are. And then with health care, I mean, with finances, it's hard for caregivers to get into a doctor to who then will write something certifying the individuals incapacitated and then maybe they have to do that with two doctors. I just feel like that is making the caregivers or the potential agents have to jump through a lot of hoops to get started. So I prefer that they be signed, be effective upon signing. And so that's where it becomes really important that whoever you're naming is someone you trust because you can't trust them if you're incapacitated, then you're naming the wrong person. Right. And I like to tell people, well, then it can be effective if you just wanted to take a trip around the world and want someone to handle your stuff while you're gone, you don't even have to be incapacitated.

Melissa Smith-Wilkinson
Right. Well, I think you could also kind of get lost in the weeds here because I think sometimes families want different people to be in charge of the finances and different people to be in charge of the medical aspect, but sometimes they overlap, and that can get really complicated and tricky. What do you usually recommend that they're on multiple things or still it's just one main person?

Sarah Traub
Well, I think that it can be okay when it's different people, because I oftentimes have families say, well, my daughter is really good with financial matters. My son would be better for making a healthcare decision for one reason or the other, whether it's geography or their skill set or whatever the case. And I think it can be okay to have separate people as long as they are people who can work together. If there are people who are going to struggle with each other, that's going to just make it hard for both of them and for for you, for the principal. So it's better to not pit people against each other. And oftentimes people will name the same people and I think that has a level of efficiency to it. So that if there is someone you think can fit both roles, then that can be a little more efficient that they have the power to do either financial or health care decision making

Melissa Smith-Wilkinson
Got you. Now you would need to seek a guardianship or conservatorship if they are incapacitated or deemed unable to understand?

Sarah Traub
That's right. Yeah. So if someone cannot appreciate the idea of appointing someone or they have been declared fully incapacitated or determined in that way to some extent, that's not really realistic or feasible for them to sign documents, then you would have to go through the court to seek a guardianship and conservatorship. The other scenario that we sometimes see, I wouldn't say it's that frequent, is just that someone has done powers of attorney, but they won't let their agent help them. And so they really like resist the help, and it's not working like it's supposed to. That can come up as well, but not as frequently as just someone who just hasn't done documents at all.

Melissa Smith-Wilkinson
Could you think of a situation, not being specific, with a family who is grappling with dementia and some of the processes that they've gone through with you.?

Sarah Traub
Yeah I can come up with lots of different but I'll give you two that will kind of show you the big distinction between the planning and the not planning.

Melissa Smith-Wilkinson
Okay.

Sarah Traub
Okay. So I worked with one family that where they came in they said we have a dementia diagnosis is it too late for us to do powers of attorney? And we talked about it, and it was clear to me that the husband understood the concept behind naming an agent, and we did it, and it was in place. And one thing I really appreciate about this family is that everyone in the family understood how much the husband like to bike ride. And he was very, very athletic. And family and friends really rallied around making it possible for him to keep doing those things, and they have to make adjustments for his limitations. But they felt that that was important for him to keep being able to do things as long as he could. And so they would make arrangements for, you know, a friend to come pick him up for a bike ride where they used to maybe meet somewhere or stuff like that to help with those adjustments. And I just thought that was really very proactive of them to get things, get their documents in place and then also what they were doing to help support keeping him active and doing what he could do.

Melissa Smith-Wilkinson
I mean, that's like a win win. It decreases the caregiver stress level but also, like, frankly, when your person with dementia is still able to do some things that they love, it does change their experience and quality of life. And it's just completely different.

Sarah Traub
So I thought that was really, really amazing how they were doing that. On the other hand, I had a situation where it was totally reactive, and the kids were all living out of state, and their dad had a medical emergency and ended up like, kind of stranded in his apartment by himself for several days before somehow figured out how to get access to him in the hospital, and he wasn't going to be able to return home. And he didn't have documents in place. And it was way too late for him to do any kind of documents. And so I helped that family with doing a guardianship and conservatorship. And it went smoothly and went well but it was just such an opposite dynamic of it was just reactive. And it was challenging since the family were in Canada and in Florida. And it's kind of interesting how the son who lives in Canada was being appointed and just figuring out how to get document notarized for him in Canada was a challenge. And that was just to submit paperwork to the court.

Melissa Smith-Wilkinson
I know. I will say having from personal experience, it's a little bit easier now that Covid has put some new parameters in place you can do more things online than you could do before, but it's still it's not worth it. It's so hard to get things done.

Sarah Traub
Yeah. Just felt like all of it was I, you know, so much of a harder process, even though we worked through it all and we got it all done and in place, it was much more difficult and involved and expensive. All those things. So, you know, I'm glad I was able to help with those families, but they were just very, very different circumstances.

Melissa Smith-Wilkinson
You know one thing that comes to mind, one thing that I've learned in my personal life, in my very younger days, I did one of those online wills, and then later I realized, I don't even think I did this right. Like, I don't even know what I did and I think it's one of those things where something like this is worth doing it properly and investing and making sure you're getting all the appropriate questions answered. I mean, I don't know. Not that asking you is almost silly of course, you're going to say it's better to go through you, but, of course. But what's the biggest like one of the key things that you tend to notice that you're just not going to get when you do something online? Like the ability what I hear is like to discern some of these other tricky situations.

Sarah Traub
Right. Well of course you're preaching to the choir when you tell me that about not using online documents. I mean, I think those documents can be good, but they're only as good as you're able to understand and input quality information. And there are some things that maybe don't don't get even addressed, right. Like they're kind of intended to address things in a more general sense. And so I feel like it's worthwhile to work with an attorney. And in this case, I would say not even just any attorney, because a lot of attorneys say, oh, I do personal injury and oh, yeah and I do estate planning, and I think, okay, well, I don't try to do personal injury at all. I only do estate planning, and there's a lot of things that I feel like I need to understand to do good estate planning for people, I have to understand taxes and public benefits like Medicaid and Medicare, and, you know, just probate laws and all of that stuff that I would say it's better to work with an elder law attorney and attorney specializes in estate planning to then be able to ask questions about the person's circumstances. We do a pretty lengthy questionnaire for our clients that help them really focus their attention on all the information that we need, and then we use it to then properly structure their estate plan.

Melissa Smith-Wilkinson
That was really good for all of us to hear so sort of that checklist of when you're looking for the right firm or the right person, do they have the elder law experience. From firsthand experience on my part, it is so critical that you, I'm gonna go and hire a gardener I'm going to hire someone who knows how to garden. It's funny how we don't think about it in terms of that.

Sarah Traub
Well, and there's a lot of state specific requirements as well that sometimes I cringe when I see documents that people do themselves and they're not actually signed properly. So they're not valid. Right. And that can sometimes happen with, like, the online products is that if it's not specific to New Mexico, it's no problem if they have more witnesses that are required but it is a problem if they don't have enough witnesses or something like that. So I just think it's, if you're going to go through the mental gymnastics of planning all this stuff, you wouldn't want it to then fail because of some technicality.

Melissa Smith-Wilkinson
I completely understand that. I'm going to ask one more question, if anyone's got a specific question, you can put it in the chat. For those of you listening on Facebook Live, I'm not actually tied into Facebook right now, so I can't see your questions. You'll want to join us for this gathering Live next time so that you can ask our guest some questions. So those that are here, if you have any feel free to add those into the chat. If the person with dementia or whatever capacity they are, if they haven't done a will yet, is it too late or how does that come into play if you missed the boat there? Or what is the point in which?

Sarah Traub
Well, I would say that I would be more focused on the powers of attorney. People die without will all the time, and if they die without a will, there are default statutes that say what will happen now that may not be in line with what the person will want to have happen. And so it would be useful for them to be able to do as will if they can. If they can do the powers of attorney, then they can probably also still do a will. But, you know, there's a lot more details involved in that. So I would say thats a  maybe.? So it kind of just depends on how it is that they're doing. But it's a little bit more straightforward to say, hey, do you want someone to help you make financial decisions or help you with your finances if you need help with that is a lot more straightforward of a question than what are your assets? Who do you want to leave them to? That gets a little more involved in details, so they may or may not still be able to do that but I would, as a caregiver, be more concerned about making sure that you can deal with the here and now.  And, you know, the afterwards, after life is maybe less critical if it's something that really just can't be done at that point.

Melissa Smith-Wilkinson
And what about,  I am having questions, what about advanced directives? Is that something that you put in the power of attorney, or is that something more in line with a will?

Sarah Traub
That is typically part of the health care power of attorney? So there's kind of two parts to health care power of attorney. One is identifying who you would want to make decisions for you if you couldn't make them, health care decisions, for yourself. And then the other part is the advanced directive piece of identifying how end of life preferences

Melissa Smith-Wilkinson
Got you. Okay. And so critical. Just a little plug here. I don't know how connected you are to palliative care and that sort of thing. Do you refer people out for resources and things for kind of understanding?

Sarah Traub
Yeah. You know what I typically do, I make referrals a lot to care managers because this is what they do all the time. Sometimes they serve as a Guardian or conservator for someone. Sometimes they serve as health care power of attorney. But I oftentimes in referring people or like adult kids for their parents. The parents live here, but the kids live out of town or they're just trying to figure out a proper placement for them in a care facility and what would really suit them. And I don't feel like I would be the person to give them advice on that. But I feel really good about referring them to someone who can.

Melissa Smith-Wilkinson
That's good. I know one thing when I'm referring people to that kind of care, I tend to look for people that have licensed social workers they have and also some experience with elders. Then they have also a little bit more richer therapeutic background to pop up with all of these different dynamics that you have, so not just knowing the community and where you could place someone or where you could find resources, but that there would be a little bit richer,

Sarah Traub
Yeah. But have some sort of care management care giving background, social work background. Yes. I completely agree with that. And I also tend to prefer to refer to people who just charge an hourly rate versus I know that there's some people out there who will help people try to find a placement in a facility and the person who they're finding that for where the family doesn't pay anything, but they get some kind of payment from the facility.

Melissa Smith-Wilkinson
Right.

Sarah Traub
And I have a discomfort around that model just because you want the care manager to try to identify a place that really suits the person rather than the one that might give them the highest payment for referring someone there.

Melissa Smith-Wilkinson
I agree with that. I do know someone who does that kind of work but has a rich well of many, many, many places, not just one or two. So that would be, I think, a really good wisdom point there ask a lot of questions if something's free. Why?

Sarah Traub
Why is it free? Like, lots of options. I mean, if you're working with someone who does that have them give you several to go check out yourself.

Melissa Smith-Wilkinson
Exactly. It's good. Good.

Sarah Traub
Yeah. I don't know that it's a totally bad model, or, you know, just I get a little concerned about a conflict of interest there.

Melissa Smith-Wilkinson
I agree with that. I think that's an excellent point. And again, it's just about I think sometimes as a caregiver period or as a human, we're just tired. And so so many even the brain researches in the process of making a decision our stress and our cortisol is so heightened but the moment that decision is made, the cortisol just straight down. And so sometimes we just want to make a quick decision, and we're immediately physiologically alleviated of it. But sometimes things are worth sifting through a little bit of discomfort to make sure the right decision is happening. So I'm going to turn just a second to our chat box, someone who has a question. It does sound a little bit specific, so you can kind of speak in general terms. I know we talked about that a little bit, and I'll just reiterate that this is not intended for very specific legal advice. I highly recommend that you continue to seek out things that are specific to your family. But we'll ask this question here from one of our guests. She says my parents identified my brother as their POA, and now I'm the full time caregiver following my father stroke last year. Should I be drawing up a new POA paperwork, or can my brother empower me to make the decisions as we go? That's a great question.

Sarah Traub
That is a great question. So it depends on a couple of things. A new power attorney would require that your dad be able to do that. So if you can't really draw it for him, it's going to have to be something he is willing to do and can do. But if the power of attorney that's already in place, names you as an alternate you could talk to your brother about him resigning in favor of letting you serve. Or he can give authorization to different health care providers to basically delegate to you. So there are a few different solutions.

Melissa Smith-Wilkinson
Like an ROI or request for information for health purposes. That kind of thing?

Sarah Traub
So I guess the brother, like, if we're talking about health care power of attorney, the brother could tell the healthcare provider I authorize you to communicate with my sister about anything to do with my dad

Melissa Smith-Wilkinson
Gotcha. Yeah. And those are usually called ROI's request for information, and they have to be it's better to get them from my experience in writing rather than verbal, because if it's verbal it, then it has to be done almost every...

Sarah Traub
All the time. Yes. Yeah. So if the brother is happy to defer to you but doesn't necessarily want to give it up completely, then yes. Having him communicate in writing with healthcare providers is the the best way to not have to always be doing it over and over again.

Melissa Smith-Wilkinson
Right. Exactly. Let's take one more question. Let's see her follow up was. Oh, yeah. Okay. Great. And then the common is there's also an issue of consent for treatment, which is more than just releasing information that is true. That's true. Yeah. Yeah.

Sarah Traub
And so I think it's going to depend on whether the healthcare providers are willing to just accept any, you know, if your brother just says whatever my sister decides is fine. Right. Well, in that case, maybe I'll just resign but if the health care power train doesn't name the sister the alternate, then that doesn't necessarily put sister in any kind of better position. And so if dad can do a new updated one, and that's what makes sense and he's willing to do it, that's probably the best option. But in alternative you would either be having the brother resign in your favor or communicating with healthcare providers what you're allowed to do.

Melissa Smith-Wilkinson
And that is such a good question and such an important piece of all of this, because it can be so frustrating to know what the issues are, to know what some of the problems are, but you cannot, and you do not have the power to do anything about it if you don't have that. Yes. Medical power of attorney. So that's really empowering for a caregiver to be able to have that?

Sarah Traub
Yes.

Melissa Smith-Wilkinson
Is there anything else that you can think of that- and we've covered a lot-that tend to come up specifically in regards to dementia or Alzheimers for you?

Sarah Traub
Well, I think we were kind of right on target, focusing our attention on powers of attorney, because that really is sort of the key to getting the caregiver authority they need to do things. So as I mentioned at the beginning, if there is a way to do some planning, get some documents in place, then definitely act on that and don't put it off because those are the documents that might be the key to something being very easy verses, something being very hard.

Speaker 1
I completely agree. Well, I want to encourage everyone now. Sarah is in Albuquerque. So if you are looking for services specific to what we've talked about today in the state of New Mexico, we've got Sarah's information here in the chat we've also put it on Facebook, and we'll have it if you're listening on our podcast, all of our information there on our website as well. If you're outside of New Mexico, is there one or two key things that they need to look for in finding just the right person?

Sarah Traub
Well, I would probably direct people to look at the Naela dot org website that has a directory, so it's N-A-E-L-A.O-R-G. It's the National Academy of Elder law attorneys. And so it's a little network of elder law attorneys across the country. And I know when I need to refer someone to someone, another state, that's where I direct them if there's not someone who I already have personal experience with.

Melissa Smith-Wilkinson
Fantastic. Thank you for that. I really appreciate that as I'm sure they do as well. Thank you. I just love how concise you are. And really, to the point and I can see just be from our conversation how easy it would be to be able to work with you. So thank you so much for just your time and your energy today. You are doing important work because I think we need more specialists in this particular area that really have compassion and understand the ins and outs of this really pretty terrible disease. And so I really value that. So thank you for all of the work that you do.

Sarah Traub
Oh, well, thank you. And thank you for having me on.

Melissa Smith-Wilkinson
Of course. Absolutely. All right. So this ends our live version on Facebook. I'm going to say goodbye to her Facebook folks, and I'll encourage you to join us live next time, and you'll be able to find the full recording on our website in just a couple of days. And also you can rewatch it on Facebook as much as you want. I will live there. All right. This.