Episode 13

Acting on behalf of a nursing home resident

 

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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers and we practice in the area of nursing home abuse and nursing home neglect in the state of Georgia. We are coming to you from our offices here in Atlanta, and we are in our library, “The Dungeon.”

And if you’re new to the podcast, then you may not know that you can download the audio portion of the podcast on iTunes or Stitcher, or you can watch, because this is in fact a video podcast, and you can watch this video podcast, this episode and each and every episode at our website, NursingHomeAbusePodcast.com, again that is NursingHomeAbusePodcast.com, or you can check us out on our YouTube channel.

And one of the perks of watching this as opposed to just downloading and listening to it is you can realize it is in fact navy blue suit jacket day here at Nursing Home Abuse Podcast. We have on navy blue, dark navy blue suits today, not for any particular reason.

Smith: By accident.

Schenk: By accident. However, now we can dispel any myths that we wear the same clothes.

Smith: We have our own clothes. They often match.

Schenk: Correct. So let’s jump right into it today, Will. Lots of good content in today’s episode. We’re going to be talking about the key differences on what happens when you need to act on behalf of your loved one, what that means, and perhaps what documents, what court proceedings you need to effect those changes.

Smith: Yeah, this is an important topic. We’ve talked about in previous podcasts how to select a nursing home, how to get ready for a nursing home, how to find the best one, but something that we don’t talk about a lot and we actually get a lot of questions on, although we do not handle this area of law. We do not do a state planning, wills, trusts, estates, anything like that.

Schenk: But we know enough to be dangerous and kind of give people a broad understanding.

Smith: Yeah, a broad understanding because it does affect what we do. But this has to do with what you need before your loved one, your mom or dad or husband or wife, whoever, before they go into the nursing home.

And the first question you may want to figure out, and this is where you go to a probate attorney and a trust and estate attorney – do you want them to have a will? Because you’ve got to understand, you’ve got to think the cold, hard reality that if they’re going to a nursing home, it is likely that this is the last place they’re going to live and they’re probably not going to be with us much longer. They’re called long-term care facilities, but the reality is many people go here and they tend to go downhill, not to mention the fact that they’re already elderly.

Schenk: It’s important at that step to make sure that your loved one that’s going into the nursing home has their affairs in order, and that’s where the will comes in. In other words, who are going to be the recipients of the assets of your loved one when the day comes when your loved one passes?

Smith: Yeah, and like Rob said, wills can be important, but let’s get into the meat of this episode and we’re talking about specifically. Wills have to do with the passing of property. That’s between you and your family – go to an estate-planning attorney.

Schenk: The next consideration is going to be the power to act on behalf of your loved one, and that’s going to come in different levels and it’s going to come within different spheres. So the first thing that we can talk about is the power to act on behalf of your loved one when it comes to healthcare decisions. And you can do that through a document that is normally called an advanced healthcare directive, or sometimes it’s referred to as a living will, even though that’s really not what it is, but it’s a document that your loved one signs that provides you or somebody else the authority to make health-related decisions on behalf of the loved one. So the most, what you would say I guess the most common example of that, what people think of, when you think of advanced…

Smith: I want you to pull the plug.

Schenk: Exactly.

Smith: Yeah, that kind of thing.

Schenk: So resuscitation – there’s generally in most of the advanced directives that I’ve seen, there’s a large portion of the document is in bold and it’s dedicated to that exact question – do you want a feeding tube? If you’re a vegetable, do you want to receive oxygen? – different levels of care that you can receive at that point, and your loved one can decide what level of care and what to do.

But when it comes to placing your loved on in a nursing home, when it comes to an advanced directive, one of the important things about that is going to be access to medical records, access or authority to act on behalf of your loved one in terms of the level of care they receive at the nursing home.

Smith: Yeah, and before we jump into that though, another very important aspect of an advanced directive is whether or not you’re going to place your loved one on the status of DNR. Okay and there are different levels of DNR.

Schenk: And what is DNR?

Smith: DNR is Do Not Resuscitate. Basically it means that if I say I want to be DNR and I don’t want you to take any life-saving steps to save my life, to resuscitate me if I start to die. Now there’s a limit to that obviously. You can almost never fault the healthcare team or the nursing home if they take steps to help somebody who is, for example, if you slipped and fell and hurt yourself, they’re not just going to leave you on the floor to bleed out and say, “Well you’re DNR.” So there’s a limit to that.

But by and large, if you start to fade away and you’re not eating, you’re not thriving, then they’re not going to take any steps if you’re DNR and they’re going to let you pass, and that’s a decision that you have to make with your loved one and then express it at the nursing home.

Schenk: So aside from a will, which deals with the passing of property to the heirs of the individual that has passed and the living will or otherwise known as advanced healthcare directive or healthcare power of attorney, there’s actually a durable power of attorney, and depending on what state you’re in and depending of the wording of the document, all these documents can function and do the same thing. Sometimes they’re separate documents, but it’s the idea is different.

So a durable power of attorney or a general power of attorney or just a power of attorney is just a document that your loved one signs that gives you the right to make certain moves or represent or do things on behalf of your loved one. So for example, deposit money into a bank, make investments, buy property, sell property, do all the things financially for your loved one that they would have the right to do themselves…

Smith: Deal with Social Security, which is a huge issue…

Schenk: Exactly. And so sometimes these documents can fall into one – the durable power of attorney can also have healthcare advanced directives in it. It just depends on the document that you sign, but the concept is you have one document and the idea is your loved one provides you the authority to act on their behalf for medical issues and deal with medical things and there’s another one that allows you to deal with every other aspect of their life, whether it’s financial or personal.

Smith: So what’s the – and actually, there are some that are even more than that – guardianship or conservatorship.

Schenk: Right, so with the durable power of attorney or the advanced healthcare directive, these are documents that can be drawn up at a law firm and you and your loved one can go and sign, and the process is fairly simple. Everybody knows what they want to do. There are other types of relationships in which you can act on behalf of your loved one that come with the power of a local court. So for example, in Georgia, the probate court, and the power to act on the behalf of other people has a different title than an attorney or the power of attorney.

In these instances where you have a court backing you, you are either going to be a guardian or a conservator. So at least in Georgia, and these are going to be fairly typical across the states, but in Georgia, the guardianship is a probate court appointment of guardian to make decisions for an adult who has lost sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. The power of a guardian over the person of his ward is like that of a parent over a child, but only to the extent necessary for the adult’s actual limitations.

So a guardianship oftentimes is done after the loved one has lost the capacity to make their own decision. So if a durable power of attorney or a healthcare power of attorney or a living will, healthcare directive – those are documents that are generally done when an individual has the capacity to make those decisions. A guardianship, and we’ll talk about a conservatorship, are going to be done typically after a health issue has occurred in which a loved one cannot make those decisions.

So a conservatorship is a designation based on the same principles of a guardianship except the adult has lost sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her own property.

Smith: So it doesn’t really affect personal affairs. It has to do with their assets and their property.

Schenk: Correct.

Smith: And so what does all this mean for you, the individual with a mother or a father, brother, sister, husband, wife that’s going into a nursing home? Well it is extremely beneficial if you take the time and you spend the money and go to an estate planning attorney and you discuss with them what your family is going to need so they can draw up the correct instrument.

Absolutely you’re going to need to be able to discuss the medical treatment of your loved one and you will absolutely want the power to get their medical records. I can’t tell you how frustrating it is to deal with nursing homes who once they find out that a law firm is involved all of a sudden become the champion of HIPAA.

I mean I’ve got a case now where they have been discussing my client’s mother’s treatment with him for months. He has been involved in her treatment. And they are even sending him bills for the treatment. The moment that they possibly committed negligence and we begin an investigation, all of a sudden they clammed up and said, “Well his power of attorney is not really enough for us to give him medical records, and even though we have been talking with him about her treatment and he’s been involved in her treatment and he’s getting the bills for her treatment, we don’t think it would be proper under HIPAA for us to give him the total medical record.”

Schenk: HIPAA being the federal statute that…

Smith: …Protects your healthcare information.

Schenk: Correct.

Smith: It’s your healthcare information is private, and they could violate HIPAA by sharing it with anybody. And it survives after death. HIPAA survives indefinitely. It doesn’t matter. So it’s extremely beneficial if in the beginning, you have the authority to see their medical records. And the best way to do that is just to go to an attorney, spend the money, it’s worth it, and have them draft you the instrument that you need.

Schenk: Yeah, the appropriate authority to act on behalf of your loved one. And this, again, I can’t stress this enough, these types of documents can be drawn up even prior to any type of health issue coming into effect. So for example, the healthcare power of attorney can basically be done and not be enforceable until a medical related issue prevents the person from being able to act for themselves. The document clicks on like a light switch. So these can be done in anticipation of a health issue or not in anticipation. It’s can be done just in case.

There was the case of Terry Schiavo from maybe a decade ago where a young lady I think was in a car wreck or a motorcycle wreck…

Smith: I can’t remember. She was in a coma though.

Schenk: She was in a coma and there was no healthcare power of attorney in that situation because they didn’t anticipate that, but if they did, then there would not have been a legal issue at all.

Smith: We wouldn’t even know who she was.

Schenk: We wouldn’t know who she was. The designated person to act on her behalf could have made that decision or not made that decision.

Smith: So what you need to do is you need to go to an estate planning attorney. You need to sit down with them and you need to say, “We’re putting my mother in a nursing home. I want the ability to talk to Social Security on her behalf. I want to be able to see her medical records. My mother wishes to be Do Not Resuscitate. I want the ability to access her Bank of America account so I can take money out of it as she needs or whatever I need to do.”

Tell them all the things you need to do. Do not go online to LegalZoom.com, whatever, and print off what you think you should have and say, “Well this is good enough.” It’s not worth it. You get what you pay for and if you don’t pay for anything, you’re not getting anything. Again, we don’t do estate planning, but we have to deal with the consequences of poor estate planning all the time with our residents.

And another thing that people often ask about before they put their loved ones in a nursing home is “Is Medicare going to take my mom’s house?” And what this is related to, and again, this is not an area that we practice – it would still be an estate planning attorney, but what this is related to is the Medicare Estate Recovery Program. Here in Georgia, it’s federal law, and Georgia was one of the last states that implemented it, but it’s still here in Georgia.

It’s federal law that was enacted in 1993 and basically it applies to – and I’m getting this straight from the Georgia Department of Community Health website. “The Estate Recovery Program applies to people who receive any of the following services paid for by Medicaid: Any person of any age living in a nursing home. A person of any age living in a facility or medical institution outside their own home. A person 55 years of age or older who’s in a home or community-based program – for example, if a nurse comes to your home to help you take your medication or change bandages.”

So what is it meant by Estate Recovery? Well Medicare is entitled to recoup any money that it spends on you if it is able to do that, and what that means is remember this – and a lot of times people say this isn’t fair and I can understand that perspective, but remember this – that Medicare and Medicaid are funded by taxpayer dollars. So if they spend X amount of money on your care in a nursing home and you pass away and you had a home, then they are entitled to, at the very least, attach a lien to that home should it ever be sold so they can try to recoup some of that money. What they’re not going to do is they’re not going to force the sale of the home, but what they can do is attach a lien to it.

Now something a lot of people will call us and ask us about is this very issue – how do we transfer assets so that doesn’t happen? I don’t know. I know there’s a look back period and I know you can’t simply take your mom’s home and say, “Well Mom, transfer the deed over to me and we’ll put you in a nursing home tomorrow and then Medicare and Medicaid won’t come after you.” That’s not how that works. They absolutely know. They know what’s going on.

You can transfer your home. There are rules about it. What I would highly suggest you do, if you’re thinking about it, and in summation, just to put all this together, you’ve got all these documents that you need to get together, whether it’s a will, whether it’s an advanced healthcare directive, whether it’s a guardianship, whether it’s conservatorship. What are we going to do about Mom’s house? Is Medicaid, Medicare going to come get it?

So what you need to do first and foremost is you need to go to an estate-planning attorney. You need to talk with them about this. It is absolutely imperative and it is completely beneficial that you take some money – if your family has to get together and pool the resources to put the money together to pay for this attorney, do it.

Schenk: It’s well worth it.

Smith: I have done it before. I have paid estate-planning attorneys to look at my parents’ assets to determine what we needed to do moving forward in situations.

Schenk: We should actually have an estate-planning attorney on this podcast at some point in the future.

Smith: I’ve talked to a couple about it and we’re definitely going to do that.

Schenk: We’ve got to figure out how to fit one more person in The Dungeon.

Smith: Yeah, or we could just have them on with their voice. I don’t know. Have them call in. But you can also call Medicaid at 770-916-0328 – that’s the Estate Recovery Unit. But the bottom line is if you’re making this leap and it’s an enormous leap that has a lot of moving parts, then what you need to do is you need to contact an attorney that deals with end of life issues and those are estate-planning attorneys. Not us. We are personal injury attorneys who sue nursing homes because of neglect. Now you’re going to help us out a lot in the long run if you have a negligence case and you come to us and you have all the documents that you need so we can get the medical records, but trust me, it’s absolutely worth it.

And with that, I guess we’ll move into the next topic, which there’s not really a segway here because this one is just kind of what a day in the life of a nursing home resident is like. I know a lot of people have different ideas of what goes on in a nursing home. I think I’ve mentioned in the past that a lot of people consider a nursing home to be a place where… I think a lot of people think of assisted living facilities when they think of nursing homes. They think of a place where a lot of blue-haired ladies are playing bingo, men are playing shuffleboard and there’s 1940’s music in the back, and that’s not necessarily what actually happens.

So just to take you through a typical day of a nursing home resident, and I’m basing this off of my experience of almost a decade working in these places. So the typical day starts very early. Around 5, you know, it’s got to start extremely early because it takes a long time for the nursing staff to get these residents up, to get them dressed and to get them ready for breakfast, which comes about 7 o’clock or a little earlier sometimes.

So it’s all hands on deck in the morning. They’re getting the residents up. They’re assisting them to chairs. They’re using the Hoyer lift to put a lot of them in their chairs and they’re brushing their hair, they’re making them look pretty. They’re getting them ready. It takes – a lot of times, they’ll even start earlier than 5 o’clock, but it takes a long time to get this to happen.

And then residents eat breakfast around 7 o’clock and that’s when the shift changes so the new shift is the one that feeds them breakfast. So it’s the 7 to 3 or the 7 to 7 shift, and I’m talking about the 7 a.m. to 3 p.m. and the 7 a.m. to 7 p.m. So those are the individuals who feed them, that next shift. And they eat breakfast for about an hour and a half. It takes a while because so many of them need to be assisted, prompted or totally assisted in eating breakfast.

Once they finish breakfast, then we begin with the activities of the day. So the very first thing that happens after breakfast is it’s now been at the very least two hours since everybody has been changed. Now is the time where we go back through and change everybody again. And then once that happens, certain individuals are scheduled for showers.

So in some nursing homes, if you’re lucky, some nursing homes have a shower team. And the shower team is made up of two or three CNAs who come get the designated individuals and give them showers. In other nursing homes, and I have experienced this way too often, the CNAs on the floor that are dealing with the residents, they have to give their specific residents the shower, and that’s an awful model, because that takes the CNA off the floor and they can’t respond to any other resident when they’re doing that. And it can take a good 20, 25 minutes to give somebody a shower because it can be difficult.

But assuming they have a shower team, they send them with the shower team, a couple of residents – not all residents, they do it staggered. Residents don’t get showers every day like you and I do. So they will send the resident off to the shower room. Other residents will be picked up by the activities department once they’ve been cleared by the CNAs, once they’ve been changed and once they’ve used the restroom if they need to use the restroom and once they’ve been given their medicine, which typically their medicine comes to them during breakfast through the charge nurse.

But once the activities department will pick up these individuals and take them to some kind of activity, and at this time, you’re looking at it’s probably around 9:30, 9 to 9:30 and they’re doing activities, and they’ll do that for about an hour. And then we’ll begin the process of changing them and taking them to the restroom once again and then getting them ready for lunch, which is coming around 12 o’clock, because, remember they ate five hours ago.

So they’ll get lunch. Lunch will last for about an hour. Now you’re looking at 1 o’clock. And after lunch, then immediately once again, we take them to the restroom and they’re changed. Seventy-five percent of what CNAs do with the residents during the given day is restroom related, because you’ve got to think these individuals, a lot of them are incontinent or they need assistance, so they’re constantly using the restroom. They’ll use it right before breakfast. They’ll use it after breakfast. They’ll use it right before lunch and they’ll use it after lunch.

And then there’s typically another shift coming in at 3 o’clock. Nursing shifts, there are a couple different types. There’s the 8-hour shift, which is the 7 to 3, the 3 to 11 and the 11 to 7. There’s the 12-hour shift, which is the 7 to 7, 7a to 7p or 7p to 7a. And then for some individuals, I would do this frequently because I didn’t work all the time. I was also going to college at the time, so when I did work, I would try to get in as many hours as possible, and I would do what are called doubles, so I would work 16-hour shifts. I might work three 16-hour shifts in a row. So I’m seeing the residents through their entire day from when I get them up in the morning, I feed them breakfast, I feed them lunch, I feel them dinner, I put them to bed.

But another shift usually comes in at 3 o’clock and the residents are taking a small nap during the middle of the day. The residents who don’t want to take a nap, usually activities, the activity department, has something set up for them. So it could be anything from a show-and-tell situation or story time. I went, I worked in a nursing home in rural north Georgia in the north Georgia mountains, so there were always church services. Every single person in there was Protestant for the most part, and so they would constantly have religious services. In metro Atlanta, there’s a larger diversity so it wouldn’t be nursing home wide like that.

But then dinner comes around 5:30 or 6, and before that happens, the residents have to be taken to the restrooms once again. They have to be changed. And so they’re fed dinner. The oncoming staff, the oncoming 7 o’clock staff will get there just a little before 7 and help finish up dinner and help get the residents ready for bed. So you’ve got to remember, these are elderly individuals, they’re not staying up… Many of them do stay up, but for the most part, 90 percent of them go to bed around 7:30 or 8. That’s when we begin putting people to bed so that around 8:30, very few of the residents are up.

Again, residents have rights and they have the ability to say, “I don’t want to go to bed,” and then they won’t go to bed. But a lot of them are tired, and the elderly often go to bed early and so they would end up going to bed around 7 or 8 and then eight hours later, eight to nine hours later between 4:30 and 5, get up and start all over again.

Schenk: And just as the day in the life of a nursing home resident ends and starts over again, so to does this podcast. We have come to the end of this particular episode of the podcast. This is the time of the podcast where Will reaches into his phone and begins furiously texting and checking his Facebook status.

Smith: I’m not looking. I’m not looking.

Schenk: That’s true. This is an aberration in terms…

Smith: I see that there are texts there and I have ignored them. I’m focused.

Schenk: Okay. Will hasn’t yet grasped after however many episodes this has been that this is in fact a video podcast, not just an audio podcast and we can see what he’s doing at any given time. But anyways, we’re just kidding. We’re just kidding here. Don’t get mad.

So if you’re new to the program, we don’t really hate each other. We’re actually law partners. We’re trial lawyers a little bit. And you can both listen and view this podcast. You can listen to this podcast by downloading it at iTunes or Stitcher, or you can watch at NursingHomeAbusePodcast.com or on our YouTube channel. And new episodes are available every single Monday for your viewing or listening pleasure.

And we have enjoyed bringing you this episode and we hope to see you again next time.

Smith: See you again next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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