Protect Yourslelf

Wednesday, September 1, 2010

Illustration by Stephen Sauer.

More Info

N.H. Department of Justice Elder Abuse and Financial Exploitation Unit, doj.nh.gov/elder

N.H. Bureau of Elderly & Adult Services, dhhs.nh.gov/DHHS/BEAS/default.htm

National Committee for the Prevention of Elder Abuse, preventelderabuse.org/elderabuse

You can't delve far into the topic of elder law without hearing some awful stories. They range from the well-known driveway-paving scam - where an older homeowner pays $3,000 up front to a "contractor" who never returns - to physical abuse of elders by their so-called caregivers, often family members. And it's hard not to focus on prosecution and punishment rather than advice and prevention.

But let's try, like Concord attorney Judith Fox does. She works from her home and spends most of her time visiting clients in theirs. "It makes people more comfortable," she says, "especially in New Hampshire where people have never had to deal with a lawyer in their entire lives. It makes a big difference, and makes me able to charge less without the overhead."

Comfort and trust are central to most areas of what's known as elder law. Arranging estates to pass on property to family rather than government is just one small part of it and easily enough done. "Most of my clients are of fairly modest means so the estate tax doesn't come up often," Fox says.

The people for whom the estate tax does arise - for example, married couples with assets greater than $1 million - most likely know about it already. If not, they need to find out, because it's more than a little complicated. Under current law there is no estate tax for people who die in 2010 because the law that enacted the federal estate tax expired on January 1. That law created an escalating scale of exemption so that in 2009 it impacted only estates worth more than $3.5 million.

But wait till New Year's Day 2010. Under current law the estate tax could return then with an exemption of only $1 million. And if you're a New Hampshire homeowner with life insurance and maybe some savings or investments, you can exceed that threshold faster than you might realize.

"For anyone who owns a home, a revocable trust is the way to go," notes Fox. "People can transfer all their property into the trust and pass it on to heirs." That protects against a possible estate tax and also helps keep the estate out of the potentially long and expensive probate process.

Fox also encourages clients to create financial and medical powers of attorney. Dr. Phillip Stebbins, a family practice physician in Londonderry, agrees they are something that elders - and everyone - should have. That's why asking about them has become a regular part of hospital admissions and yearly physical exams.

But Stebbins says they're best not left until someone might actually need one soon. "Most docs are pretty aware that if you bring this up out of the blue it can be threatening," he says. "The first thing they're going to ask you is, 'Is there something wrong?' And if they're in the hospital, they're probably sick, which could make it more stressful."

Done appropriately, however, a health care power of attorney can ease a stressful time. "It initiates discussion within the family so they do not get blindsided by something they never talked about, and it just makes everybody's job a whole lot easier when you don't have to guess what someone would want," Stebbins says.

A financial power of attorney empowers someone to make money-related decisions on your behalf while you are unable to do so yourself. "Everyone should have one regardless of their assets," Fox urges. "If you are no longer able to carry on your affairs and you have $2,000 in the bank, the bank isn't going to deal with anyone who doesn't have that authority, so your family would have to go to court to get guardianship and that becomes a lengthy ordeal."

This is where trust becomes critical. When you sign over the power to control your finances, you need to be confident that the person receiving the power will use it in your best interest, rather than, say, their own. The potential misuse of that trust is so harmful, and so common, that the New Hampshire Attorney General's office has a unit focused exclusively on elder abuse and financial exploitation.

Assistant Attorney General Tracy Culberson runs it. "Almost 10 out of 10 times there is a financial component in the abuse or neglect cases we see," he says. "The most common is someone who has been given power of attorney and ends up using the person's funds for their own benefit. It starts with filling their own gas tank, then goes on to paying their own medical bills or using the money for vacations."

Physical abuse can start that way, too, Culberson says. A caregiver's client is often unable to complain about neglect or mistreatment and that can lead to serious problems. Over time the caregiver does less and less while still collecting their pay, until finally the elder turns up in an emergency room suffering from infected bedsores.

"Neglect is more common than physical abuse, but abuse cases are not rare," says physician Stebbins. "Stuff like verbal abuse, keeping them shut in, not giving opportunities for socialization outside of the house and withholding of affection. Beatings are less common, but unfortunately you see that, too."

As a family practitioner Stebbins' perspective is unique because multiple generations of a family could all be his patient. Despite that, he says, hospitals and physicians have a duty to report suspected cases of elder abuse, much as they must report suspicions of child abuse.

"Depression is the number one sign, especially if it represents a change," Stebbins says. "Second is weight loss. Third would be bruising, especially from grabs to arms and wrists. And fourth would be unexplained injuries, similar to kids being abused."

Both Stebbins and AAG Culberson are in the business of stopping abuse, but their approaches vary. As a prosecutor Culberson focuses on rescuing victims from abusive situations, convicting perpetrators as well as educating state and local law enforcement officials about legal remedies. "I want to pick away at the tendency of these victims to suffer in silence," he says. "Hopefully, with more training and awareness, the message will get out that they have advocates on their side, so call us and let us do something."

Stebbins goes a little further. "Do we need more education? Sure," he says. "There are certain pathological situations in families and those people need medical attention. But societally the issue is twofold: It's the breakdown of the extended family and a lot of elderly who don't have financial resources. There are plenty of things that government can do, for example structuring the tax code and Social Security to make it more feasible for families to stay together and care for each other. And there are a lot of things we can do culturally to promote families, but that's a cat that's been out of the bag for 50 years and would take another 50 years to roll back - if you got a societal mandate to do so" NH