04 August 2013

Before you make the ALF decision for your parents...

Recently I came across this article by Linda Hurtado of ABC Action News (WFTS-TV, Tampa's ABC affiliate) on how to choose the right Assisted Living Facility (ALF) for your parents when the time comes.  It is a well written article on what to look for in an ALF and - most importantly - your financial options when the time has come to choose an ALF over independent living.

DISCLAIMER:  Before I go on further, none of what you are about to read is considered, nor it should be construed as, legal advice.  If you have any questions regarding this or any other legal issue, please by all means see an attorney who is licensed by the Florida Bar.
While I think most ALF's are reputable and show a level of unparalleled dignity and respect for the residents that live there, unfortunately there are ALF's out there that will take advantage of your parents from a financial standpoint.  In fact, I have read horror stories of ALF's that resort to the use of Florida's guardianship laws in order to get their hands on every dollar of a parents' assets.

Once an ALF finds someone with a substantial amount of assets, an ALF has struck a vast pool of Texas Tea.  Or an underwater Gulf of Mexico goldmine.  Let the financial feast begin!
Before I go on further, may I suggest reading my topic on guardianship in Florida - the legalized kidnapping and exploitation of the elderly and disabled as well as our veterans that proudly served America - over on my web site?  This will give you a basic idea of what a guardianship is in Florida and the potential for abuse, especially at the hands of professional guardians and others involved in assessing a person's capacity to make informed decisions such as social workers and psychiatrists.
The first thing you should do if the time comes to consider placing your parents in an ALF is to consult an attorney.  Your attorney can assist you in many ways as to the preservation of your parents' assets.
After all, once an ALF knows of your parents' assets - especially significant assets - the ALF has essentially hit a goldmine as far as a good source of income is concerned.  An ALF can welcome your parents with open arms, but once your parents are settled into the congregate living world of an ALF, the ALF administrators can declare open season on your parents' assets, as well as your parents' daily activities among other things.
An ALF is run by an administrator who oversees the day to day operations of the ALF.  Working under the ALF administrator is a team of professionals - either on the staff or on call as needed - such as social workers and psychiatrists, just to name a few.  All it takes is knowledge of a serious medical condition, such as diabetes (and I don't care which type of diabetes it is) or Alzheimer's, to set off a cascade of legal events that turn your parents from legal adults into wards of the State of Florida.
The administrator, working in concert with the social worker, psychiatrist and the ALF's legal counsel, will file a petition for guardianship with the goal of going after the parents' assets.  In Florida, two petitions start the guardianship process:  The Petition to Determine Capacity and the Petition for Appointment of a Guardian.
Once the petitions are filed and the parents are notified that petitions have been filed to inquire into their mental capacity to make everyday decisions, a hearing is held before a probate judge to appoint the three person examining committee.  It is the job of the examining committee to inquire into a person's ability to make everyday decisions, and the inquiry does not stop with the interview of the person that is the subject of the guardianship petition.
The examining committee goes further by getting testimony from the ALF administrator and the ALF's social worker among the persons.  Next, the examining committee will get their hands on any and all medical records of the alleged incapacitated person by way of the subpoena process.

Speaking of medical records, despite federal privacy laws such as HIPAA in place, the examining committee can look at not only the medical records from the alleged incapacitated person's physician, but records maintained by other entities such as the Medical Information Bureau as well as Milliman for prescription drug histories and FICO (you got that right, FICO, the same company that gives you your credit score) for the FICO Medication Adherence Score, a scorecard as to how well a patient complies with doctors' orders by taking the medications as prescribed.  All it takes is a legal subpoena, of which the maintainers of the alleged incapacitated person's medical records must comply with once served.
Once everything is all said and done, the reports of each member of the examining committee are summarized into a report that is given to the probate judge.  The judge reviews everything and in a subsequent hearing, if everything is in order the judge will adjudicate the person incompetent and appoint a guardian.
Once the adjudication is all said and done, bingo!  The ALF just got their hands on your parents' assets in order to pay for the cost of being in the ALF!  And legally, thanks to Florida's guardianship laws!
And as for your parents, your parents are in the custody of a total and complete stranger who dictates the way of life for your parents.  God knows who was involved in the selection of the professional guardian:  More than likely the ALF.  Moreover, the guardian either severely restricts your visits to your parents or, worse, cuts off all your visitation privileges completely.
Remember, a person who is a ward of the state (in other words, under guardianship) has much less rights than a convicted felon.  Among the rights lost (assuming a plenary guardianship):
The right to vote
The right to determine where you live
The ability to seek or keep a job
The ability to have a Florida Driver License
The ability to manage property
The ability to sue or be sued in court
The right to determine who you can be associated with
The ability to travel - even outside the ALF
The ability to retain an United States Passport
The right to make decisions regarding medical treatment

The professional guardian goes to work immediately on whatever assets can be converted into cash in order to pay the recurring monthly ALF fees such as room and board among other things.  A house which has been the home of your parents - and which you more than likely grew up in - is sold and the proceeds go to the professional guardian which eventually ends up in the hands of the ALF - usually after the professional guardian helps himself/herself to a share of the proceeds as professional guardian fees.

The same thing goes for all other assets the parents had:  Money in banks, money received as a result of receiving government benefits, family heirlooms - and the list goes on and on.

Once all the assets are spent, then it's time to apply for Medicaid.  Once Medicaid is approved, the financial lifeline in the ALF's favor thanks to your parents is still intact.

You are kept out of all decision making as far as your parents are concerned.  The only time the ALF or the professional guardian overseeing the affairs of your parents will contact you is if your parents passed away.  In other words, you are kept in the dark regarding your parents.

Once your parents pass away in the ALF, it's game over for all the players that have overseen your parents' care.  Then the ALF finds its next "victim" and the wheel of guardianship spins all over again.

So what can you do for your parents when it comes time to think about making the transition from home to ALF?

First and foremost, arrange a meeting with an attorney, preferably an attorney that knows both wills, trusts and probate as well as elder law.  Most attorneys can give you a 30-minute consultation either for free or for a small fee.  This cannot be over-emphasized enough:  Check the attorney's qualifications and expertise as well as his or her courtroom track record before you hand any sum of money to an attorney when you sign that retainer agreement.

Be sure that the attorney you select is licensed by the Florida Bar.  Much better, an attorney licensed by the Florida Bar and certified in probate and elder law matters is much more favorable.

A competent attorney will show you the ways that your parents' assets can be structured to prevent their being taken by professional guardians.  Steer clear of attorneys who think that guardianship is the only way to preserve assets - just remember what happened to a Clearwater resident whose name is Carol Kinnear as far as the unintended consequences of a guardianship are concerned.

Next, research ALF facilities in your area by starting online and visiting the individual ALF websites.  Narrow down your list based on their reputation (how do I find out?  Do a Google search for (name of ALF facility) complaints) and contact them to arrange for a tour of the facility.

When you take a tour of the ALF facilities, you may want to take your parents along.  While you are there, you will get a first impression of what the facility is like.  All I can say here is trust your instinct - if while you are touring an ALF facility you have any concerns about placing your parents there, the best thing to do is to err on the side of caution and leave the facility.

The only time that your parents give out their personal information is when the decision is made to enter a specific ALF and the paperwork is completed.  In fact, have your attorney review all ALF paperwork before signing anything.

In fact, work with your attorney to discuss safeguarding your parents' assets before your parents sign the ALF paperwork.

Now what if, despite your best efforts, your parents resist your efforts to place them in an ALF?  According to Linda Hurtado of ABC Action News your parents do not have to go to an ALF, unless adjudicated incompetent in a guardianship proceeding.

In other words, your parents are legal adults with all the rights and privileges appertaining thereto, the same way when you turned 18 and became an adult yourself.  The only way the rights and privileges as an adult can be taken away from you - other than being convicted and sent to prison - is the guardianship process as defined in Chapter 744 of the Florida Statutes.  Then again, a person under guardianship has much less rights than a convicted felon.

So please, before you make the ALF decision for your parents, speak to an attorney first.  After all, your parents took great care of you, and someday the time will come when it's time for you to take care of them.

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