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Friday, February 3, 2017

When the law goes too far, seeking to become God

    GEORGE TEMPLETON    
    COMMENTARY   
By George Templeton
Gazette Columnist
My hope is that our twenty-nine year personal story, presented in two week intervals, about early onset dementia and neurosis will help others to understand the consequences of health care policies.  Part 1 described the influence of the author’s childhood.  Part 2 brought the personal to the public, describing our moral dilemma and finding a care facility.  Part 3 discusses secrecy within the industry.  Part 4 will be about the court and Part 5 lawyers. 
Myths of Arizona Long Term Eldercare, Part3
“Midway upon the journey of our life, I found myself within a forest dark, for the straight forward pathway had been lost.”  Dante
Sometimes we are called upon to choose between wrong and wrong, and we don’t know how we will do it if that time comes.  We can’t choose when we don’t know what the choices are.  Worse yet, our naivety can be preyed upon.  We didn’t want to play a game where everybody knows their rules but we weren’t allowed to understand anything.
It’s Secret
The newspaper advertised a free private meeting with a specialist who would help us.  It was one of those cold dark mornings where you would like to stay in bed instead of venturing out sixty miles on hazardous icy, snowy roads.  We bundled in heavy coats because our car heater had stopped working.  Driving time meant that we would have to pack our lunch or eat out.  This was our fourth attempt to see the future.  I did not expect to hear the lawyer’s sales person say, “Get that man out of here.  I want to talk to the lady.”  I was politely but assertively asking for answers to my questions.  I wanted to know how it works.  She wanted to be shown the dollars.
“You say that the services of a lawyer are mandatory.  Can you name some?
Why do we need a lawyer?
You have been involved in the medical qualification process.  They say that it is enough to be at risk for needing skilled nursing, but what does that mean?  Dementia has many different causes, types and symptoms.  Are mental conditions like neurosis and anxiety influential?
Care decisions trade finances, medical conditions, living environment, and our personal freedom.  Will the state and law consider this?
Some care facilities interview the ward before permitting admission.  Will a lawyer do this before accepting a case? 
Can you suggest some ALTCS care facilities?  Is the state funding enough for them?  Do they have residence time requirements?  What services do they provide?  What are the added costs?   
What happens when there is a medical emergency?  What is the relationship between Medicare, Medicaid, and ALTCS?
Can I see an example of an ALTCS application?  What questions are asked?
Who is responsible for the accounting and reporting to the Miller trust, ALTCS, Social Security, and the court?
Three quarters of ALTCS applications are denied.  Why?  What happens to those who fail admission to the program?  Do they try again and then become successful?  Are they subsequently cared for by family members?
Will increased future demand, government budget reductions, or changes in the law be influential?  What happens if the Medicaid dollars run out?
Why do lawyers charge all cases the same amount?  Our ward had no property, no businesses, no investments, and no husband.  We would be responsible for doing all the footwork and providing all the information.  Shouldn’t that make her a simple and cheaper case? 
Why does it cost $20,000 to help a poor person apply to ALTCS?  Lawyers say that they will “stay with it” if the application fails, but who pays then?  What if there are future problems?
Why is there a ten to one variation in the prices quoted by non-legal ALTCS planners and eldercare lawyers?”
She said, “It does not matter what it costs because the taxpayer will incur the costs.  I cannot help you with any of these questions because I am not a lawyer.”  Worse yet, if a non-lawyer gives you a clue, they would be practicing law illegally.
How often have you bought anything when it does not matter what it costs?
A Competitive Edge
A business colleague jokingly explained that whoever dies owning the most toys wins.  Unlike the ancient Egyptians who built the pyramids, we realize that we can’t take our belongings with us.  There is a thread that goes beyond irresponsible individualism.  It is one thing for our leaders to not understand the issues and quite another for them to not care.
Secrecy bestows power and control.  It is in business deals.  Adversarial relationships lead to secrecy.  Plans will not be shared when relationships are combative.  Secrecy leads to distrust and suspicion.
When I buy a house I expect to be told about facts so I can make an informed decision.  That is missing when it comes to eldercare.  If you don’t know the facts and can’t know the future, how will you make decisions?
Ask, “Who is on my side?”
Sleeth V. Sleeth
Who has to prove what to whom?  Are we guilty until proven innocent?  The State is worried that somebody is getting something that they do not deserve.  A greedy conservator gave them the excuse they were looking for. 
A son became the guardian of his 81 year old father’s living trust.  He imprisoned his father in a lock-down unit for advanced Alzheimer’s dementia, but pop only seemed demented because he was drugged.  He had a girlfriend whom he intended to marry, but that would get in the way of the son’s inheritance.  After fighting in court, a doctor determined that pop had never been demented and he was set free.  Legal charges depleted the 1.4 million dollar estate.
The blame should have been shared by lawyers and the family conservator who was maneuvering to get his father’s inheritance.  The court found that the exorbitant legal fees were commensurate with the problem.
There should be a cost benefit analysis to select what is in the best interest of the ward, but that is like the mythical unicorn.  There is nothing to require that the ward derive any benefit from legal fees incurred, or that can specify their worth.  When you retain a lawyer, you will pay the lawyer’s $400 per hour clock fee along with the quoted fee for service, and you have no idea what the charges will become.  They will grow much larger than quoted.  Lawyers justify their price by averages, but they are a mathematical abstraction influenced by the wealth of a lawyer’s customers.  Your loved one is the only reality.
Eventually, our ward’s accounting had only two entries, the income from her pension and social security.  We paid all her other expenses out of our pocket.  New accounting forms require an inventory of assets, their market value, and why they were sold for more or less than your reported estimate.   We were told that the review of conservator accounting, when venue is in Maricopa County, would cost $300, the same as the accounting of those with complicated financial lives.  It robs the taxpayer and hurts those who truly need help the most.
Judgment
“Abandon all hope, ye who enter here”, reads the sign at the gate of hell.  We did not suspect that judgment day had come.  The question is, when does the law go too far, seeking to become God?  When the judge says, “You can’t understand probate law”, he means that the authorities have no obligation to hear you or to explain anything.  It was a canned routine, used for everybody, that had no consideration for our past history, the ward’s condition, or our moral obligation.
We had dealt with the court for eight years without any question or problem, spending more than a quarter of a million dollars of our ward’s money, but this time the court was five months late in scheduling my wife’s appearance.  The judge blamed that on us, but we had filed our accounting early.  It was approved without problems as had always been the case in the past.  It is not unusual for restricted funds to be delayed into the following year if there is an accounting problem.  But who pays then?
We needed restricted funds released promptly, as they had been every year in the past.  My wife’s head spun when the judge said, “Do you expect me to give you two thousand dollars of somebody else’s money? I don’t want you running off to Mexico!”  It was an unexpected change of heart.  The judge explained that the State was not our friend, but neither was he or the lawyers he required us to retain.  He seemed to be forgetting that he worked for the State and was elected by the people.  We went to see a lawyer as he had ordered.
Ex parte
Shouldn’t ex parte communications be prohibited in eldercare situations because of the potential influence of big money?
The lawyer explained that he needed to have a conversation with the judge to assess what the judge might agree to.  We would not be present.   “Arizona has “problem-solving” courts, in which judges are authorized by court rules to act in nontraditional ways…. outside the context of their usual judicial role as independent decision makers on issues of fact and law”.  This contradicts the popular conception that the client directs all critical case decisions, leaving only minor tactical issues to attorneys, and that the lawyer must act in the relentless pursuit of the client’s wishes.
Conservators often appear before a judge without legal representation.  Lacking knowledge and given an atmosphere of duress, there is a potential for misunderstanding.  Conservators report to a judge, but bonding requires a lawyer.  They know about the family conservator’s financial worth.  It creates a situation where judges and attorneys operate in a system of mutual obligation.  Relationships develop and friendships are formed.  The law can step in, railroading, and holding the family hostage.
A contemptuous court
We were cooperating with the court and a lawyer, but it came as a shock to us that in the last ten seconds of my wife’s second appearance, the court ordered us to gift all of our ward’s money to a lawyer’s account.  They expected that there would be money left over for undefined purposes.  The judge’s demeanor intimidated my wife when he explained, “You must not have heard what I said.”  We felt we were railroaded when the lawyer’s secretary called us the next day asking for the money.
Allegedly, the law acted in the best interests of our ward, but it was completely ignorant of her.  The court had not mentioned her or our future plans at any time during our numerous previous appearances.  Only we understood our ward’s wishes and psychological situation.  Our prospective lawyer provided an intention instead of a plan, without guarantee, that documented only our down payment.  It was our ward’s remaining wealth.
The lawyer explained that we might have to take Sis into our home, but that was an 800 square foot cabin with high stairs that was out of town in the forest.  We would need a crane just to get her in and out of our place.
The Soothsayer
You need to have a plan describing the costs, the timing, and exactly what will happen at least two years from the time that funds will be depleted if you want control.  The court had not informed us about this.  The remaining money in the ward’s account was sufficient to maintain her residence for one year where she was staying or for two years in a less expensive residence.  An unnecessary crisis had been manufactured by the court.
The judge explained that lawyers could see the future, but we had been shown nothing.  We did not agree that things had to be rushed.   We felt that we should not pay for anything that was completely unspecified, open-ended, and not promised.  All cases were charged the same high amount, regardless of complexity.  That was testimony to a focus on money instead of people and to the strata of society that ALTCS actually serves.  Our task was to locate an ALTCS accepting home immediately.  We were given only two days to accomplish this.  That was not enough time.

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