The Elder Law Hawai'i Handbook: Protecting Your Health, Wealth, and Personal Wishes 9780824890612

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The Elder Law Hawai'i Handbook

IMPORTANT NOTICE: Careful thought and reflection based on personal experiences have shaped this book. However, the contents should be considered as general information only and should not be used to provide specific legal, financial, accounting, or spiritual advice. Such advice for any particular problem or concern should be sought from appropriate professionals. The areas covered in this book are constantly changing and the information gathered at the time this book was printed may be superseded by changes to the law. Accordingly, this book should not be relied on as a substitute for professional legal advice. You may wish to send a self-addressed, stamped envelope to the University of Hawai'i Elder Law Program and ask for its list of services and products, including updates in the field of elder law. Attorneys may want to ask about the lawyers' supplement to this book, which contains pertinent statutes and case law. Portions of this book were written based on information provided by federal and state agencies. For more information about a particular benefit or area of the law, you may wish to contact an agency mentioned in this book directly. Many agencies are listed in the "Telephone Reference Guide to Community Resources" at the end of this book.

Hawai'i has a long history of providing assistance and protection to the elderly, as well as to other potentially vulnerable persons. King Kamehameha the Great proclaimed his first edict, the Law of the Splintered Paddle, in eighteenth century Hawai'i. The edict was based on his own experience which taught him that life was precious and deserved respect. The edict declared: THE LAW OF THE SPLINTERED PADDLE

KANAWAIMAMALAHOE

"O my people, Honor thy god; Respect alike (the rights of) men great and humble; See to it that our aged, our women, and our children Lie down to sleep by the roadside Without fear of harm. Disobey, and die."

E na kanaka, E malama'oukou i ke akua A e malama ho'i i kanaka nui a me kanaka iki; E hele ka'elemakule, ka luahine, a me ke kama A moe i ke ala 'a'ohe mea nana e ho'opilikia. Hewa no, make.

The Elder Law Hawai'i Handbook provides current guidance for older persons, their family, friends, and caregivers; for professionals in the fields of health care, law, financial planning, and social work; and to the general public planning for the future in an ever increasing complex world.

The Elder Law Hawaii Handbook Protecting Your Health, Wealth, and Personal Wishes

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JAMES H. PIETSCH Attorney-at-Law

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"

I

. 1 %

and LENORA H. LEE Legal Assistant

A Latitude 20 Book University of Hawai'i Press

^

Honolulu

© 1998 University of Hawai'i Press All rights reserved Printed in the United States of America 03 02 01 00 99 98

5 4 3 2 1

Library of Congress Cataloging-in-Publication Data Pietsch, James H. The elder law Hawai'i handbook : protecting your health, wealth, and personal wishes / James H. Pietsch and Lenora H. Lee. p. cm. "A latitude 20 book." Includes index. ISBN 0-8248-1888-1 (alk. paper) 1. Aged—Legal status, laws, etc.—Hawaii—Popular works 2. Legal assistance to the aged—Hawaii—Popular works. I. Lee, Lenora H. II. title. KFH91.A3P54 1998 346.96901'3—dc21 97-48604 CIP University of Hawai'i Press books are printed on acid-free paper and meet the guidelines for permanence and durability of the Council on Library Resources Designed by David C. denBoer

Contents

PREFACE

vii

INTRODUCTION

1

Chapter 1

Putting Your House in Order

7

Chapter 2

Estate Planning

30

Chapter 3

Personal and Business/Financial Affairs and Legal Preparations

62

Chapter 4

Medical Treatment and Making Health Care Decisions in Advance

86

Chapter 5

In Sickness and In Health

120

Chapter 6

Protective Services, Elder Abuse, and Neglect

148

Chapter 7

Surviving Death and Dying

166

Chapter 8

On Your Own—First Things First

184

APPENDIX A

Kokua Packet

207

APPENDIX B

Settling Your Case without a Lawyer

215

APPENDIX

C

Euthanasia, the "Slippery Slope," and the Courts

218

Hiring a Caregiver

223

APPENDIX E

Na Kupuna

228

APPENDIX F

Probate and the Distribution of Property upon Death

234

APPENDIX

D

v

vi • Contents

APPENDIX G APPENDIX

H

Selected Federal Benefits Programs Age Discrimination in Employment and the Americans with Disabilities Act

APPENDIX

I

APPENDIX J

245

Housing and Landlord-Tenant Issues

251 254

Telephone Reference Guide to Community Resources

259

GLOSSARY

263

INDEX

275

ABOUT THE AUTHORS

283

Preface

"Prepare for the worst, but expect the best" is a good strategy for growing old and getting ready for the way you want to live the rest of your life. I have been practicing law in Hawai'i for over two decades and I have spent most of this time serving older persons in our community, helping them "put their houses in order." Over the years, I have seen the harsh effects of illness and poverty on older people as well as what happens to families when their loved ones did not put their affairs in order before they died or became incapacitated. Failure to plan for the future can have a devastating effect on people of any age. At the University of Hawai'i Elder Law Program (UHELP) one of our goals is to pass on some of the lessons we have learned through our experience in helping elders. The aging population of our nation has had and will continue to have a major effect on people of all ages. Experts in the field of aging estimate that the number of persons sixty-five years of age and over will double by the year 2030. The number of AsianPacific elders in the U.S. is expected to increase by over 600 percent during this same period. Percentage-wise, people who are eighty-five years of age or older are the fastest-growing segment of our population. The majority of older persons are women. Aging can clearly be seen as a woman's issue. This should not be too surprising since women generally live longer than men and are usually the caregivers for disabled or older persons. At UHELP, nearly three out of four of our clients are women and more than half of them are over seventy years old. While some older women may have a trusted support system of an extended family that may even extend across several islands, there are others who are isolated and vii

vili • Preface

live alone. Some women have moved to Hawai'i from the mainland and have no families at all. Because every situation is different, it is usually unwise to make generalizations. Our experience at UHELP may not mirror the general population, but our older women clients tend to be homemakers or may have been employees in predominately lower-wage jobs. Some do not have a high level of education. Others may have always taken charge of their own lives but now must depend on others to take care of them and their finances. When a tragedy, such as the death or disability of their husbands, strikes them, they are often at a loss and are sometimes paralyzed by not knowing what to do. While it is equally unwise to generalize about men, it seems that although elderly men may often have more control over their finances, they may be in less control of activities affecting their daily lives. Having depended on their wives for many years for socializing, preparing meals, doing the laundry, and caring for the home, they may be less able to cope with ordinary, day-to-day activities. Some older persons, both men and women, because of illness or the effects of "advanced age" are confused and forgetful and are even less able to cope. Clients and families often contact UHELP for legal assistance in putting their affairs in order. No matter what clients perceive as their immediate problems, we start by discussing five underlying needs to help them sort out their priorities and to help us identify a starting point to address their needs. Individual circumstances and finances often determine how these needs are met and what options are available. The five basic premises are as follows: 1. 2. 3. 4. 5.

You will need You will need You will need You will need You will need

somewhere to live. some money to live on. something to do. someone to care. to take care of yourself first.

You will need somewhere to live. If you are fortunate, you can live independently in your own home. If you do not own a home, you may need to rent a place. If

Preface • ix you have children, moving in with them may not always be the best solution—it can work well or it can cause resentment and friction between the generations. It also entails making adjustments and possibly sacrifices. Each family is different and you will have to decide whether or not this is a good idea. If you are financially unable to own or rent a home, rather than moving in with the children, you may want or need to seek public housing, elderly housing, or "Section 8" government rental assistance housing. If you have a disability, you may need to live in a supervised environment such as a care home or nursing home or, as an alternative, in a group home where there is someone to take care of you. (We have included a brief overview of housing, including landlord-tenant issues, in the appendix.) You will need some money to live on. Along with a place to live, you will need money for subsistence. If you are still healthy and have enough assets, the years may indeed be golden ones. If money is tight or if you are living only on Social Security, you must prepare for the worst. Social Security provides very little for extras and probably nothing at all for luxuries. If your basic necessities are not met, you may have to look into government benefits for food, shelter, medical, and financial assistance. Do not feel ashamed to do this. You have paid for these benefits with your taxes and your contributions to society. You will need something to do. You may fill your time with traveling, taking care of grandchildren, gardening, or pursuing part-time work. If you start feeling you have too much time on your hands, develop some new interest or interests to make life richer. Many senior centers, senior clubs, community colleges, and universities offer classes on activities you may have always wanted to pursue but did not have the time or opportunity to do so when you were younger. Volunteer opportunities also abound. Keep busy and active. Help others. You will need someone to care. If you have children, you should talk to them and prepare them for the real possibility that illnesses and disabilities may

x • Preface

strike you, perhaps unexpectedly. Although you may not want to burden your children with your problems, you must be straightforward and talk to them about what you expect from them and what roles and responsibilities they will have, if any, in taking care of you, especially if you become incapacitated. This is especially true if your children live far away from you. To minimize problems later, you must voice your feelings and wishes and communicate with your family—even if it is embarrassing or uncomfortable. Depending on your personal family situation and financial status, you will have to address your possible need for a caregiver at home or long-term care in a supervised setting such as a nursing home and how you will pay for this care. Nursing homes are expensive, and there is often a waiting list. Older people are not only the recipients of caregiving; they are often caregivers themselves. Caregiving is often a thankless job and is hard on both the individual and the family. Abuse and neglect sometimes happen when caregivers are tired and cannot take the stress of caring for a person twenty-four hours a day. The stress is often compounded when caring for a person with a devastating mental disorder brought about by such a condition as Alzheimer's disease. Now is the time to think about setting a caregiving plan in place, identifying someone you would trust to watch and care for you, finding out about chore service agencies and caregiver support groups, and thinking about sharing the financial and physical burden with other family members if you should need care. At some point, long-term care outside the home may be a reality. You will also have to talk about death and dying, including medical treatment decisions in your final illness as well as funerals and memorials. Facing these issues of mortality is often difficult initially, but once you do, following through may not be as difficult as you thought. We are not doctors at UHELP, but we have often discussed issues of death and dying as they relate to our clients with members of the medical profession. You should look to that profession for authoritative information and advice about medical issues. Further, some of the medical information presented may make you uncomfortable. If so, you may wish to

Preface • xi

discuss death, autopsies, organ donations, and the dying process with a doctor or another health care professional, a counselor, a family member, or a close friend. You will need to take care of yourself first. Even though preparing for your own potential needs may seem like preparing for the worst, the more you are prepared for the future, the less frightened you are likely to be about it. Also, the more you keep yourself safe and happy and the longer you keep healthy, the more likely it will be that you will be able to expect the best from the future. Treat yourself well. Eat sensibly and engage in physical activity under the supervision of your doctor. Do not be stingy with yourself. Do not put off what you may always have wanted to do. Once you take care of yourself, then make the legal and financial preparations to prepare for the worst. Finally, as you put the rest of your affairs in order, expect the best.

Introduction

W h a t should we call people who comprise the older segment of our population? Should they be called "senior citizens," or "seasoned citizens/' or "older persons," or "elders," or "elderly," or some other label? One of my favorite clients once told me, "Just call us 'old people' because that is what we are." Although I use several terms throughout this book to describe people who are of advanced years, you should note that this book is written for all people who are concerned about planning for the future and the possibility of death or disability. I am an attorney and serve older persons (sixty years of age or older) as the director of the University of Hawai'i Elder Law Program (UHELP). UHELP has a rich tradition of providing assistance and guidance in the field of elder law to the people of Hawai'i. This tradition includes providing direct legal services, education, training, and research and even supporting legislation to better the lives of elders. UHELP focuses its resources on making justice accessible to older persons, their caregivers, and their loved ones through preventive legal measures, education, training, self-empowerment, and, if necessary, recourse through the courts. Lenora Lee is the UHELP legal assistant, or paralegal. Her vision of proactive legal services, self-help, and practical legal education for older adults led us to write this book. Much credit goes to her for doing research, listening to our clients talk about growing old, and interviewing experts in the field. Through this book, it is our hope that by preparing for the worst, we, you, and our clients can expect the best. This book is designed for many people: the individual who has no one to rely on in case of an emergency, the parent who 1

2 • Introduction

wishes to put his or her affairs in order before death, children who must manage a health care crisis that has already erupted— often via long distance—the spouse or loved one who must face life—and perhaps death—alone, and the family and professional caregivers who contribute so much to helping those who are no longer able to help themselves. I have attempted to write this book with as little "legalese" as possible. While this book is not intended to serve as a "do-it-yourself" legal guide or as a substitute for professional legal advice, it can serve as a good starting point in putting one's house in order. I have tried to achieve a balance in presenting sufficient information for a person to get a flavor of some of the legal issues we commonly face in elder law without overwhelming the reader with volumes of material and footnotes. This is difficult since, after all, lawyers are people who can write a ten thousand-word document and call it a "brief"! Some of the topics in this book, such as elder abuse, euthanasia, and physician-assisted suicide, may seem grim or controversial. These topics, however uncomfortable, reflect today's realities and changes in society. You will notice that the subject of health care plays an important role in this book. This is because legal issues relating to health care are very important in growing older. I will relate several stories that illustrate issues that clients have faced over the years. I have not included any names in these stories and I have modified the cases to preserve privacy. Because the stories reflect common problems and happen so often, you may think that you recognize somebody in one of the stories. I have also included examples of common legal documents to help explain certain legal concepts. These documents are for illustrative purposes only and may not necessarily apply to a particular situation. These examples, however, will give you a better idea of what to consider in making a legal document. I hope that the practical information I provide will help you avoid—or at least minimize—legal problems. I also hope that it will inspire confidence and the motivation to do what needs to be done. Lastly, I hope that this book will make our clients, their caregivers, and their loved ones akamai survivors. Putting your house in order, preparing for the unexpected, and managing a

Introduction • 3

crisis are all part of the responsibilities and realities of life and living and death and dying in a new age. Many friends who are experts in their respective fields also generously gave of their time and shared their insights: Steven Lee, an attorney; Kali Watson, the chair of the Hawaiian Homes Commission; Lee Takara, a Hawaiian Home Lands lease specialist; Evelyn Char, a psychiatrist and grief counselor; Doris Ogawa, an artist; Lara Lee, a layout designer; and Randall Lee, a tax consultant. With much aloha and love, we remember Lynette H. Kurren, who at the time of her death was the county executive and director of the Elderly Affairs Division of the City and County of Honolulu, Hawai'i. Mahalo nui loa to the members of the Hawai'i Legal Auxiliary for their kokua and generous support to UHELP. Our work in elder law could never have been possible without the continuous support of the Hawai'i State Executive Office on Aging, the Elderly Affairs Division of the Office of Human Resources of the City and County of Honolulu, and the William S. Richardson School of Law. Here is a brief overview of the contents of this book. Chapter 1, "Putting Your House in Order," gets you started. It is written not only for the person who may be putting his or her affairs in order, but also for spouses or other partners, for caregivers, and for adult children, especially those who live far away from their parents. It goes through the important considerations of competency, capacity, and self-determination. You will also find information about lawyers and paralegals and how they can help you in planning for your future. You may also find a few ways to keep a little better control over your attorney, if necessary. Chapters 2, 3, and 4 will take you through the legal, financial, and health care preparations that should be made for your health and your wealth. Drawing up a will, signing a "living will," executing a durable power of attorney, and making other legal documents are all means that you can use to direct and inform your family or others what your wishes are for them and what you want done for yourself. When you put your affairs in order, your survivors will be spared the feeling of not knowing what to do or what your last wishes might have been.

4

• Introduction

Chapter 5, "In Sickness and In Health," is designed for the person who is facing a serious illness as well as for the caregiver and for children helping a parent who may be facing a health care crisis. This chapter is intended to take some of the mystery out of paying for health care, including long-term care. This chapter briefly explains Medicare, the Hawai'i Quest Program, and Medicaid. It includes information on spousal impoverishment under the Medicare Catastrophic Coverage Act, Medigap, and long-term care insurance policies. Chapter 6, "Protective Services, Elder Abuse, and Neglect," focuses on what happens if proper planning is not accomplished or if matters get out of hand and state intervention or other legal action is required. Abuse, neglect, and exploitation are, unfortunately, growing concerns, especially for vulnerable elderly in America. Chapter 7, "Surviving Death and Dying," is written for the survivor who must confront the difficult time immediately before and after a death. This is the time to carry out previously made plans or to arrange the funeral or memorial service and the burial or cremation. It is also the time to settle the estate of the deceased. This chapter briefly discusses the different forms of probate and the duties of the personal representative. It is also the time to start thinking about what preparations you think would be helpful for your survivors. Chapter 8, "On Your Own—First Things First," gives the survivor tips on getting organized. Death can often paralyze or numb the thinking process. This chapter discusses ways of putting first things first and determining your own priorities when you must face life without your loved one. This chapter encourages you to take the full measure of government benefits and entitlements and to seek out hidden assets when you must be on your own. This chapter also looks at rebuilding your life. Although your house may be in order, few survivors are truly prepared to face life alone. For many survivors, life has changed dramatically. Difficult issues of how to deal with grief, where to get help, and what not to do are discussed. Several appendixes appear at the end of this handbook. We have included our popular "Kokua Packet," which helps you start

Introduction • 5

planning immediately. "Settling Your Case without a Lawyer" offers some options to hiring an attorney. "Euthanasia, the 'Slippery Slope/ and the Courts," discusses the current controversies over death and dying, physician-assisted suicide, and recent court involvement. "Hiring a Caregiver" incorporates some of the most important information about the problems of hiring a caregiver for yourself or a loved one. In the "Na Kupuna" appendix, information is presented for individuals who are of Hawaiian ancestry and must plan differently for acquiring and passing on Hawaiian Home Lands leases since neither Hawaiian Home lease lands nor the hanai tradition found in Hawai'i are governed by standard property or probate law. The Department of Hawaiian Homes Commission has put together some basic information about these two very unique issues. "Probate and the Distribution of Property upon Death" outlines new probate and nonprobate distribution of property of a deceased person under the new probate code. "Selected Federal Benefits Program," provides an overview of such programs as Social Security, Supplemental Security Income, and veterans' benefits. "Age Discrimination in Employment and the Americans with Disabilities Act" provides information about common discriminatory acts relating to the elderly. "Housing and Landlord-Tenant Issues" presents a brief overview of housing options for individuals who do not own their own homes and incorporates some of the information we received from the state Consumer Resource Center about landlords and tenants. A "Telephone Reference Guide to Community Resources" and a glossary are included for referral and information. We hope that these chapters and appendixes will help you put your house in order so that your caregivers or survivors will not have to face major legal and financial problems when you become incapacitated or die. We also hope that this book will ease your pain of loss and confusion following the death of a loved one. Being alone does not have to mean being lonely. Help is at hand. One day, you will have come full circle and it will be your turn to help others be akamai survivors.

I Putting Your House in Order

Legal, health care, and financial preparations are three important areas that require careful attention in putting your house in proper order. These preparations may involve numerous professionals, including an attorney, a financial planner, and an accountant, who draft or review documents that you can use to put in action what you want done and to make it easier for your survivors to carry on after your death. Today professionals often team up to provide financial, legal, and health care services in a "holistic" manner. Accordingly, an attorney may seek the advice and assistance of a doctor, nurse, social worker, accountant, or CPA to help with a client or vice versa. You should not put off obtaining professional services when you need them. If you cannot afford an attorney, you may be eligible for certain free legal services (which we discuss later). Whether you pay for an attorney or receive free legal services, these professionals know many "tricks of the trade" that will help make your plan for the future work better.

Legal Preparations You can start putting your house in order by considering at least five basic legal documents for your health and for your wealth. These documents are: • • • • •

a will a trust a general durable power of attorney a living will a durable power of attorney for health care

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• The Elder Law Hawai'i Handbook

These documents will be discussed in detail in the chapters that follow and will help you focus on most of the important areas of planning for your future. Sample formats of a durable power of attorney, a living will, and a durable power of attorney for health care are included at the end of the respective chapter dealing with the particular document.

Getting Help Over the years, as an elder law attorney, I have received many requests for help. One of the questions both younger and older people most frequently ask is, "Can you help?" Most of the time there is something I can do or there is some other person who can help. Sometimes, quite frankly, it is too late. For example, there was a couple in their seventies who had been living together for several years. They both had children from previous marriages and their former spouses were still living. The couple had intended to get married eventually, but "never got around to it." Each received a small monthly Social Security check and the man had a moderate pension. They kept their money in separate accounts; eventually the man accumulated a nice nest egg, which he was going to use for a vacation cruise for both of them. They lived in the house belonging to the male partner who, shortly after his divorce, had made a will giving all his property, including the house, to his son and daughter. In the past few years, the man stated that if he were to die first, he wanted to make sure that "she [his partner] would be taken care of." They had often talked about "planning for the future," but, again, just "never got around to it." One day the man suffered a massive stroke, which left him unable to communicate. Eventually he was placed in a nursing home and, since he was unable to communicate, the nursing home suggested that a guardian be appointed. After several court hearings, the son was appointed as guardian of the person and guardian of the property for the man. Shortly thereafter, the son asked his father's partner to leave the home. In addition, he instructed the nursing home not to include her in any discussions about the man's care. Most of the money in the man's account was spent on his nursing home care.

Putting Your House in Order • 9

The woman was forced to apply for public assistance and is presently on a waiting list for public housing. She is consulting with a family law attorney about "palimony," but her prospects do not look good. Things would have been very different if the couple had just "gotten around to it" and planned for the future. Like this couple, some people procrastinate too long or do not believe that physical misfortunes such as heart attacks, strokes, or even accidents will happen to them. Since many of the "hopeless" or very expensive legal situations involve individuals who have totally lost their capacity to communicate or may have some lesser-capacity problems, I discuss the issue of capacity in some detail in this chapter. I want to encourage you to start thinking seriously about the future since, as in most situations, prevention is usually less stressful and cheaper than intervention.

Clients Elder law attorneys often face enormous pressure to breach the confidentiality of their older clients, who may not be very "sharp" or who depend heavily on a younger person. Spouses, children and other relatives of older persons, doctors and other health care providers, hospitals and nursing homes, care home operators, home caregivers, social workers, accountants, and even attorneys may forget about the need for confidentiality and privacy. To guard against the possible breach of confidentiality, a lawyer must always be able to define who his or her client is and to whom the lawyer owes allegiance. An evolving concept of "the family" as a client is an appealing idea, but an attorney's ethical responsibilities still require a determination of who the client is. Unfortunately, we see a lot of family conflict. The attorney must be alert to the potential abuse of the elderly (discussed in greater detail in chapter 6). The attorney owes loyalty to the client. Issues of client confidentiality and the ability of an attorney to report abuse of a client are sometimes difficult to resolve, and attorneys are urged to contact the local Office of Disciplinary Counsel for guidance. Often an adult child will try to take advantage of a parent's diminished capacity or just plain fool a parent by asking him or

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• The Elder Law Hawai'i Handbook

her to sign a legal document transferring assets or giving that child power over the person and property of the parent. This may or may not involve an attorney. Sometimes two or more children will attempt to get their respective attorneys to provide completely contradictory services. An all-too-common situation is where each of the children tries to get a parent to sign a power of attorney, will, trust, or deed that provides benefits only to that child. Sometimes children are "shocked" that one sibling was trying to take advantage of the situation. Many times a family will not discover that one of the children took advantage of a parent until the parent has died or become mentally incompetent or is otherwise incapable of explaining the situation. A typical call I receive will come from a spouse, child, or caregiver at the urging of a physician or hospital social worker. The caller may be worried because the older person is exhibiting "confusion" or "delirium" or "dementia" or has other serious health problems that renders him or her partially, intermittently, or even entirely unable to communicate. It can be very difficult to help such a caller and the patient, especially when the patient has not made any legal preparations. In some instances families, who are often unfamiliar with legal requirements or capacity issues, respond inappropriately by trying to get the patient to sign legal documents the patient does not understand. The documents may have been procured from a stationery store or from an attorney who prepares documents for them without a full understanding of the issues and complications involved with changes brought about through injury, disease, or the aging process.

Competency and Capacity Competency In dealing with clients, competency is a key issue for an attorney. While the terms "competency" and "capacity" are often used interchangeably, competency is generally utilized in a legal context whereas capacity frequently appears in a medical context. As those in the fields of medicine and law attempt to grapple with the issues involved with the ability of an individual to think, to understand, to evaluate, and to communicate, there is an increased awareness of the need to determine a person's ability to

Putting Your House in Order • 11

make and to express informed decisions. Problems usually arise when a doctor or a lawyer feels that the individual does not have sufficient competency or capacity to act on his or her own. Even with the best lawyer (and even with plenty of money) it may be impossible to solve the legal and related problems of an incapacitated individual without state intervention. A simple example suggests why issues of capacity are important and how preventive law could have avoided outside intervention. A person suffers a stroke that renders him incapable of communicating and of making medical treatment or any other kinds of decisions. The hospital asks the family to get someone to become the legally authorized representative to make decisions for the patient. There is a debate within the family about what to do. One side of the family calls an attorney "to get a power of attorney," which will not only give the family member the power to give medical consent for the patient's treatment but also to gain access to the patient's funds to pay the mounting bills. The attorney informs the family that it is too late to get a power of attorney since that document must be executed by the person granting the power when that person is still "mentally competent." The family asks if a family member can at least sign medical consent forms. The attorney informs the family that even though "family consent" provisions can be used to help families make medical treatment decisions, they are currently effective only in nursing facilities and even if they were effective, health care facilities would be reluctant to proceed if there is a disagreement among family members. The attorney goes on to explain that since the patient did not make any prior preparations and needs to have both personal and financial matters taken care of, guardians of the person and the property may need to be appointed by two separate courts. Guardianship can take several months to establish and can be costly. To add to the difficulty, because the patient never nominated a specific person to be guardian, if there is disagreement among the family members, the court may also have to make that decision. This family would not have needed court intervention if the patient had made previous legal arrangements or if he had

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regained the ability to think and to communicate and then put in place the legally effective mechanisms that are described in this book. Incompetency and Incapacity In working with clients, the question whether the individual has competency or the capacity to make decisions often arises. The starting point in decision-making is the concept of autonomy, or respecting the capacity and right of competent adults to their own self-determination. Individuals in the United States can choose to make their own decisions and, at the same time, they take responsibility for their choices. As we will see in the section dealing with abuse and state intervention, the rights of an individual to self-determination are balanced by the right of the state to protect its citizens from harm due to the actions of others and, under certain circumstances, from harm due to their own actions. When attempting to balance the rights of an individual against the protective interests of a state, there are usually trade-offs between freedom and safety. This is why great care has to be taken by the state when attempting to intervene in a person's life. A competent person, that is, a person who has the mental capacity to communicate informed decisions may, of course, make decisions about his or her own person or property. It is also possible to enhance or extend a person's ability to exercise his or her self-determination, even in the event that a person is no longer able to communicate. As you will learn in greater detail later in this book, this can be accomplished through the use of certain preventive law tools, including trusts and powers of attorney. In respecting a person's right to make decisions, initially it is important to recognize that adults are presumed to be competent and to have the capacity to make choices, although this presumption may be rebuttable. Further, while the terms "competency" and "capacity" are often used interchangeably, distinctions can be made between them. The concept of incompetency is traditionally considered to be a legal status imposed by courts. Judicial findings of incompetency, however, are infrequent. When judicial involvement is

Putting Your House in Order • 13

considered necessary, it is most often in the context of determining whether the appointment of a guardian is necessary or commitment to a mental health institution is appropriate. Judicial Findings of Incompetency Most people who work with older persons or persons with disabilities have a general understanding that only a judge in a court of law can declare a person to be "legally incompetent." I often get calls from hospitals, nursing homes, and service providers asking me to refer them to the section of the law that states the judicial authority and procedures required to declare a person legally competent or incompetent. There is no such single section of the law. First of all, there is no court process for an individual to request an opinion, determination, or finding that he or she is competent. Retroactive determinations can be made about competence to execute a will or power of attorney— usually after a person is dead or becomes clearly incapacitated. Otherwise, determinations of legal incompetency usually follow a petition by a representative of an agency or a concerned individual who feels that the subject of the petition cannot adequately care for himself or herself or property or poses a danger to himself or herself or others. Following presentation of evidence in a hearing, a judge may find an individual to be legally incompetent and appoint a guardian to make decisions on behalf of the "ward" or "protected person" or, if the court proceeding involves mental health issues, subject an individual to involuntary mental health treatment. Different courts will hear different types of cases; the evidence usually includes the testimony of a psychiatrist or psychologist or other medical authority such as a geriatricl2ian or internist, or neurologist skilled in the field of the purported disability of the person who is the subject of the proceeding. Determining Capacity The concept of capacity (and incapacity) is related to specific activities and is sometimes referred to as "decision-making capacity." The determination of decisional capacity is considered by many to be within the domain of the medical profession rather

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than within the domain of the courts. Lately, however, modern judicial practices, such as those found in California, consider this approach and utilize the concept of "everyday capacity" in their deliberations. These modern approaches require judges to consider a person's alertness and attention (including orientation in time and place), ability to process information (including ability to remember and recognize others), thought processes (including whether he or she experiences hallucinations or delusions), and ability to control mood. In general, decisional capacity is usually considered to be present when an individual is sufficiently able (capacitated) to make a particular decision, if, minimally, he or she has the ability to understand the nature of the problem or activity he or she is facing, to understand available alternative courses of action (including no action), to understand the possible risks and benefits attaching to each of these alternatives, to be able to deliberate and evaluate the information, and to be able to express a reasoned choice that is consistent over time. Each specific activity that involves a decision, such as the provision of informed consent for medical treatment or the execution of a will, trust, living will, or power of attorney, may have a different required level of decisional capacity to be considered "valid." There is still no single conclusive test to determine capacity in court. Medical diagnosis and prognosis are utilized in conjunction with legal standards that are still evolving. Most experts no longer consider "competency" to be like a lightbulb—either it is on or it is off. Most experts agree that people have a series of abilities or competencies that may be present, lacking, or diminished. One of the greatest challenges is working with a person with memory loss, both long-term and short-term. Short-term memory loss appears to be a common problem in many older persons. Such memory loss may be a sign of a problem of the brain's ability to create or "lay down memory," but it does not necessarily mean that a person should be considered "incompetent." As more service providers (including attorneys and doctors) attempt to work with individuals or families of individuals who are totally, partially, or intermittently mentally incapacitated, it becomes clear that not only is it often difficult to determine what the best course of action might be, but it is also difficult to

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fulfill the ethical requirements of the professional-client/patient relationship. For example, an individual who had been diagnosed with a possible beginning stage of Alzheimer's disease came into my office. She was accompanied by some friends who were concerned that she had not made any plans for her future, including her death. Her doctor had also recommended that she get a living will and durable power of attorney for health care as soon as possible. She readily admitted that she was having a hard time remembering things. As a matter of fact, while she knew she was a widow, at that very moment she could not remember her husband's name. She knew she needed help and she trusted her friends, but she was often confused and did not know what to do. After we carefully explained her options, she thanked us but still could not tell us what she wanted us to do for her. A few minutes later, she said that she could not remember much of what we had told her. Ultimately, by utilizing carefully crafted yet simplified documents, by consulting her physician, a psychiatrist, and a social worker, and by setting up safeguards for her protection, we were able to assist her.

The Attorney's Duties Hawai'i court rules provide general guidelines that define the attorney's role according to the "mental condition" of the client. These guidelines were adapted from the American Bar Association's (ABA) Model Code of Professional Responsibility The code has established five primary responsibilities for attorneys with respect to their clients. According to the ABA's "Best Practice Notes," Working with Questionably Competent Clients, these five duties are: 1. to fully inform a client and abide by the client's decisions about the aims of the representation 2. to zealously advocate a client's cause 3. to provide competent and diligent legal assistance 4. to remain loyal to the client 5. to keep a client's confidences These duties make it clear that the attorney is the agent of the client and that it is the client who should be the guide. This duty

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will become complicated when a client seems to be unable to make decisions that further his or her own interests or has trouble understanding where his or her interests lie. If the attorney takes action that departs from the client's directives, the duty to act as the client's agent is violated. Over the years, the medical field has developed many tests that can examine the competency or capacity of individuals by testing a person's mental status. Tests can include mental status assessments, cognitive testing, and physical and laboratory examinations. Cognitive testing or screens are usually accomplished by asking patients a variety of questions, by giving them simple subtraction problems to solve, by asking them to name various objects, and by asking them to draw various objects. Some attorneys have adopted this approach and have developed their own "client capacity screens." Basically, a client capacity screen makes suggestions on how the attorney should determine competency when working with the elderly or disabled client. It does this by directing the attorney's attention to the client's general appearance, awareness level, orientation, verbal interaction, memory, and even physical functioning. It also suggests dialogue and interview techniques as well as pointers on what to look for in the client. The screen can be used as a record for later use in supporting the attorney's assessment of the client's capacity. (Sample questions are included at the end of this chapter.) The next time an attorney starts asking you strange questions, he or she may simply be testing your capacity.

Hidden Capacities Sometimes family members, friends, and even professionals make judgments about a person's capacity based primarily on appearance. A person may appear to be incapacitated but, through further investigation, effort, and patience, it turns out that the person has or can regain capacity or competency. A complex case we handled illustrates how far one should go to assist a person with perceived difficulties. A ninety-year-old woman came to our office in a wheelchair. She was blind and deaf. She also could not understand English.

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We were able to help her through the assistance of sophisticated translators who were able to communicate through touch. The questions we asked, and were able to independently verify, indicated that the woman was of sound mind and desired our services. As a matter of fact, after a while we were able to elicit laughter and animated responses to personal questions. She was happy to have somebody "talk" with her. A person may suffer from the loss of the ability to speak and use language due to a stroke or other injury. This condition is called "aphasia." Just because a person is aphasic does not necessarily mean that he or she cannot understand, think, and make reasoned decisions. There are professionals (including attorneys) who seem to have the special gift of being able to talk with aphasics. Through a combination of "active listening," repetition, signs, writing, patience, and smiles, effective communication can be accomplished. There are other conditions that may affect how a person appears but have little or no effect on how he or she can think and make decisions. A person may have tremors or a blank face, drool, or cry a lot. This can be due to such a noncontagious and nonhereditary condition as Parkinson's disease or some other condition. Patience and understanding are often all that is normally needed under these circumstances. A person may have an attention deficit or seem to be mentally disturbed, appear to be confused, have disordered speech, be hallucinating, or have a combination of these disorders. Such mental disturbance is often called "delirium" and can come about through a variety of causes, including disease, dehydration, malnutrition, medication, alcohol, chemical imbalances, and gland or organ damage. Often the cause of the delirium can be discovered and the condition can be reversed. If the condition is reversed, the individual may appear to be mentally "competent" once again. This is why physicians play such a crucial role in evaluating capacity. There are cases where individuals suffer severe damage to their brains and lose their ability to move any muscles yet retain their ability to think and to understand what is going on. Many times people in such a "locked-in" state cannot communicate

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that they are still "alive and thinking." Some reported cases involve people who came out of such a state and nobody realized for years that they could hear and understand. Fortunately, others have been "discovered" and, through the help of skilled persons such as speech pathologists, they have been able to make contact with the rest of the world, often through eye movement or blinking.

Dementia One of the least understood conditions that gives rise to questions of competency is dementia. Although only a small percentage of older persons are afflicted with this condition, it is a frightening problem in the community. Of course many people, not only the elderly, suffer memory loss, confusion, or disorientation and related difficulties. Also, remember that sometimes conditions such as delirium may be reversible. In the context of capacity, dementia can be a serious problem since it may adversely affect how a person is able to take in information, process the information, and, ultimately, act on or respond to the information. Persons suffering from dementia may go through personality changes, but this does not mean that they are necessarily "demented" in the common sense of the word or that they cannot function in society independently or with a little help. Dementia is often defined as a loss of language, memory, visual and spatial abilities, or judgment, which significantly interferes with a person's daily activities. Symptoms of dementia include forgetfulness, incontinence, wandering, falling, inattention, agitation, disorientation, personality changes, delusions, aggression, depression, and the inability to think, recognize, or communicate. The number, the speed of onset, the severity, and the duration of such symptoms can vary and may not necessarily lead to a diagnosis of dementia. The causes of dementia are not always apparent or easily detectable. Causes can include degenerative disorders such as Alzheimer's and Parkinson's diseases, or strokes, head trauma, vascular diseases, toxic, immunologic, or metabolic diseases, infections, or cancer. Whatever the cause, dementia can have a

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significant effect on a person's competency or capacity. The condition can also have a significant effect on the emotional wellbeing of both the patient and family members. By understanding the symptoms, causes, and predicted outcomes of such conditions and by understanding that the often sudden and frightening changes in mood, personality, and thinking are not uncommon, the individuals involved may gain a sense of acceptance and the ability to better cope with the condition. If the condition is discovered and addressed early enough, it may be possible to make a determination that the patient still has sufficient capacity to make informed and reasoned decisions and to set appropriate legal mechanisms in place for the future. In cases of partial or marginal capacity or where a person may be somewhat uncertain about what to do, "gentle persuasion" may be a useful technique to use in planning for an even more uncertain future, with the understanding that issues of selfdetermination and undue influence may be raised. In situations of a long-term relationship built on a solid foundation of trust and guided by the "values history" of the individual involved as well as what is in his or her "best interest," many families are able to guide their loved ones to make decisions and to take action to preserve as much of their personal independence and well-being as possible. (Values histories will be discussed in chapter 4.) Finally, capacity may be in question during a terminal illness as the body and mind "shut down." (The physical and mental aspects of the dying process are discussed in chapter 7.)

Competent for What? Remember that competency should not be thought of as a single ability that a person has or does not have. Rather, people have various competencies that may or may not be present. For example, a person may be quite competent to withdraw money from an ATM machine in order to be able to go grocery shopping but may be incapable of driving to the store. It then follows that if a person is deemed to be "incompetent" in one area, he or she may not necessarily need total intervention or assistance to function in another area. The person may need only a little help, guidance, or persuasion. On the other hand, he or she may be

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able to adjust his or her own style of living and may not want or really need any help at all. While it will always be difficult to agree on appropriate tests and criteria for decision-making and intervention, many professionals are learning more about the issues of incapacity and professional assessment teams and competency clinics are being established throughout the country. In addition to physicians, psychiatrists and psychologists may assess capacity. Psychiatrists are medical doctors who have taken many years of additional training in mental, emotional, and behavioral disorders. Psychologists, while not medical doctors, hold advanced degrees in the study of mind and behavior in relation to a particular field of knowledge or activity. Psychiatrists and psychologists are often called on to provide treatment or therapy to patients as well as to test individuals for mental, emotional, and behavioral problems and for mental capacity. Mental capacity issues can involve such matters as an individual's competency to participate in a criminal trial or the decisional capacity to execute a legal document. Often fees for treatment and therapy are covered by insurance, but "forensic work" relating to legal issues may not be covered. A person's attending physician, psychiatrist, or psychologist may also bring in other professionals (such as a speech therapist) to assess a difficult case.

Hiring an Attorney The importance of "competency" also extends to hiring an attorney. A "competent" person, a guardian, or another "legally recognized surrogate" can retain an attorney, whether for himself or herself or on behalf of an incapacitated person. If you feel that you need the assistance of an attorney, what exactly should you expect the role of an attorney or lawyer to be, and how can you find a good one?

Lawyers A lawyer is, generally speaking, a person knowledgeable in and licensed to practice law. Other terms frequently used for lawyers in the United States are attorney, attorney-at-law, and, sometimes, barrister, counselor, and solicitor (in the sense in which

Putting Your House in Order • 2 1

the latter three terms are used in England). The Supreme Court of the State of Hawai'i has the authority by law to examine, admit, and reinstate as practitioners persons that it finds qualified to practice, and it has the sole power to revoke or suspend licenses to practice in the courts of the state. Minimally, in Hawai'i, to obtain a license to practice law, a person has to be a graduate from an accredited law school (usually three years of study after college), must pass a bar examination, must be judged to be of proper moral character, and must meet other requirements of the Supreme Court of Hawai'i. The rules of practice in all states (including the rules of the Supreme Court of Hawai'i) mandate that all lawyers admitted to practice in the state must comply with the high standards of the state's "Code of Professional Responsibility." This code contains specific provisions governing attorney conduct in each state. A lawyer who violates this code may be charged with unethical conduct and be subject to disciplinary action. In addition, the rules of the Hawai'i Supreme Court authorize the trustees of the "Clients' Security Fund" to reimburse losses caused by the dishonest conduct of attorneys admitted to practice in Hawai'i when the misconduct involves the wrongful taking of a client's money, securities, or other property in the practice of law. Paralegals/Legal Assistants A paralegal or legal assistant is an assistant to an attorney. Paralegals usually receive several years of intensive legal training from such institutions as Kapi'olani Community College Legal Assistant Program or through on-the-job experience. Most paralegals hold bachelor's degrees from colleges and universities and many hold advanced degrees. Paralegals perform certain legal duties under the supervision of an attorney. However, they cannot carry out responsibilities that require admission to the bar, such as representing a client in court or providing legal counsel. Often paralegals will have advanced knowledge or skills, not only in the law, but also in other fields of expertise such as social work, health care, insurance, business, or finance. Paralegals are often used to great advantage by attorneys in working with clients, especially if the paralegal

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has enhanced communications skills or can devote more time to the client. A paralegal can sometimes be used as a buffer between an attorney and a client or potential client. Sometimes an attorney seems busy or disinterested and a client may feel hurt, ignored, or neglected. The paralegal can often take the time to listen to the client and reestablish an effective attorney-client relationship. In dealing with potential clients, a paralegal can help determine whether the attorney has the capability to serve the potential client and can identify possible conflicts of interest. For example, I get dozens of calls every week from individuals who would like to talk to me about problems they are having with their attorney or who may be "fishing" for a second opinion about advice they have received from their attorney. Sometimes the individual will hide the fact that he or she already has an attorney. A competent paralegal can help sort out some of the professional, ethical, and practical issues involved and keep the attorney out of trouble. Much as we like to help, sometimes we are not equipped with the particular knowledge of a field of law; usually we cannot discuss matters with an individual who is already represented by counsel. Finding a Lawyer

If you do not have a family lawyer, you may find that a colleague, relative, or friend may have one or know of one. Word of mouth is often a good way to find a lawyer. You can call a lawyer referral service, which is usually run by a state or local bar association and which does not charge you for the referral. Usually a person who calls a lawyer referral service will obtain the names and telephone numbers of attorneys who subscribe to the service and who have indicated a special interest in certain areas of the law. You can also check the Yellow Pages or commercial advertisements. Be very careful, however. The flashiest ad does not always indicate the best attorney! Many attorneys do not advertise or sign up with a lawyer referral service. Sometimes you can ask a respected professional, such as your doctor, dentist, or accountant, for the name of his or her attorney. Make sure, of course, that they are satisfied with that attorney and that you feel you can afford what they pay for services. (I discuss lawyers' fees a little later.)

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The Legal Aid Society of Hawai'i and Hawai'i Lawyers Care provide free legal services for eligible clients in certain civil cases. The public defender provides free legal services for eligible clients in criminal cases. There are even specialty nonprofit law offices such as the University of Hawai'i Elder Law Program and the Immigration Law Project. Finally, there are nonprofit organizations, such as Protection and Advocacy Agency and the Domestic Violence Clearinghouse and Legal Hotline, which utilize attorneys to assist clients. Even after you find an attorney, your job is still not done. You should talk with the attorney before you agree to pay for his or her services to determine what the fees will be and what your respective responsibilities will be. Usually attorney-client relationships are documented in "retainer agreements." Of course, you should make sure that you read the agreement and ask questions before you sign it. The retainer agreement sets out the facts, circumstances, and conditions under which the attorney-client relationship is to proceed. Fees, other costs, the extent of representation, the roles and responsibilities of the attorney and the client, and, often, the manner of resolution of difficulties in the relationship are covered. Since it is an agreement, it should be viewed as a contract between the lawyer and you. Both parties should have the right to specify what may or may not be acceptable. The retainer agreement should not be seen as a "take it or leave it" proposition.

The Care and Feeding of Your Lawyer The first question in entering into a relationship with an attorney (besides "Can you help me?") may well be "How much is this going to cost me?" Always ask if your initial meeting will cost you money. Many attorneys do not offer an "initial free consultation," and you will be expected to pay for your time with the attorney even if it is a preliminary meeting and you may decide not to retain the attorney For an attorney, it is usually true that "time is money." If the attorney charges by the hour, be sure to ask about the hourly charge and for an estimate of how much your case may cost. It may be hard to get a precise answer, but try to get as clear an idea as possible about costs.

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Some attorneys charge a flat fee for certain services. Even under these circumstances, be careful—any additional tasks, changes, or modifications could cost you money. Some attorneys charge on an hourly basis. Under this system, time truly is money. Other attorneys charge on a "contingent fee basis," a mechanism through which the attorney will receive a percentage of what he or she is able to recover for the client. Of course, not all cases are suitable for payment under a contingent fee basis. Also, the law prohibits contingent fees for certain kinds of cases, such as criminal cases. Be a responsible consumer and "shop around" for an attorney you can trust and afford. Try to determine if you are getting good value for your money Compare prices and find out an approximate range of fees attorneys charge for similar services. Attorneys are getting more competitive. Do not use cost as a sole criterion, however. While price may have nothing to do with capability, sometimes you do get what you pay for. Also be aware that often attorneys, especially well-known or much-sought-after or senior partners, use associates to accomplish their work. You may wish to find out to what extent your attorney will actually be personally working on your case. Some attorneys offer "senior citizen discounts," but this practice may not always mean value for your money or attorney competency. Finally, to feel more comfortable in choosing an attorney, take a look at the "attorney competency screen" at the end of this chapter.

Working with Your Lawyer When you work with your attorney, be prepared and do your homework. Read this book. Keep your appointments. Show your attorney all of the documents affecting your case, not just selected documents. Make a list of concerns. Remember to bring your written questions with you so you will not forget to ask them. Be sure to take notes so that you will remember what your attorney tells you. Ask questions. Share your own point of view. Be honest with your attorney. Do not hide facts. Stick to the point when you are talking with him or her since, remember, time is money. Make sure you hear and see as clearly as possible. If you wear a hearing aid, use it. If you have glasses (even reading glasses), bring them and wear them. Consider bringing a family

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member or a friend along if you need help or encouragement. Some people seem to have better luck with attorneys than others. I am not necessarily talking only about success in a particular case since, often in the law, one party may "win" while the other party may "lose." Ask people about their experiences with their attorneys. You may find out why people like a particular attorney or how people are able to maintain a good relationship with their attorney.

"Woe unto You, Lawyers . . ( L u k e 11:52) The public seems to have a love-hate relationship with lawyers that goes back far in history. While lawyer jokes abound, many people have a good relationship and may even like their lawyers. Most lawyers are honest, hard-working, conscientious, and "competent" in their particular area of expertise. Many even answer phone calls from their clients and other attorneys. An attorney may or may not be personable. Occasionally, attorneys may attempt to take on more than they are capable of handling. Some attorneys may venture into areas in which they lack training or experience. Some may take on too many clients. Some may be forgetful or even inconsiderate. Some may be suffering from a mental incapacity or even substance abuse. For whatever reason, you may not be satisfied with your experience with your attorney. Since there are often two sides to a story, it is usually best to attempt to keep or initiate open lines of communication. What you, as a client, do may be the key to your success in resolving any problems or misunderstandings. Often a client's persistence will pay off, and the relationship can continue to the ultimate conclusion of the case. Unfortunately, sometimes the relationship breaks down and cannot continue. Under these circumstances, you may need to get a new attorney or seek assistance from somebody else. Keep in contact with your attorney even if he or she is going to charge you. If you are not successful in communicating orally with your attorney, put your concerns in writing and mail or fax your letter. This will usually get his or her attention and you will be creating a "paper trail" that may come in handy later if you need to show proof that your attorney failed to display due care

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toward your interests. If, after reasonable efforts, you feel you are not able to handle the situation yourself, you may need to get help. If the attorney has supervisors or partners, try to contact them.

Disciplinary Complaints against Lawyers If you are unable to resolve your problem, you may need to pursue other avenues, ranging from requesting assistance from the bar association, requesting mediation/arbitration, seeking Office of Disciplinary Counsel (ODC) intervention, or, in extreme cases, hiring another attorney to file suit in court. If you feel that your attorney has treated you in an unethical manner and you cannot resolve the problem, you may file a complaint with the ODC, which was established by the Supreme Court of the State of Hawai'i. The ODC also provides attorneys with informal and formal opinions in response to ethical questions. Fee Disputes If you have a dispute about the fee that your attorney is charging and you cannot resolve the dispute, you can ask the Hawai'i State Bar Association Attorney-Client Coordinating Committee for assistance. Do not wait too long to contact them. If you do, your attorney may have already turned your bill over to a debt collection agency or even filed suit against you for the monies in dispute. Lawyers' Fund for Client Protection The Lawyers' Fund for Client Protection was established by the Supreme Court of the State of Hawai'i to reimburse clients who have suffered loss of money, property, or other items as a result of the dishonest conduct of lawyers. The fund is a remedy of "last resort" for clients who cannot obtain reimbursement from other sources, such as from insurance coverage or the attorney involved. Elder Law Many people ask me "What is elder law?" and "How do I find an elder law attorney?" The National Academy of Elder Law Attorneys (NAELA), an organization of attorneys who specialize in

Putting Your House in Order • 27 the field of elder law, provides some helpful insights into this emerging field of practice for attorneys and consumers. Rather than being defined by technical legal distinctions, NAELA defines elder law in terms of the client to be served. In other words, the lawyer who practices elder law may handle a range of issues but has a specific type of client, namely, older persons. Elder law attorneys focus on the legal needs of the elderly and work with a variety of legal tools and techniques to meet the goals and objectives of the older client. Under this holistic approach, the elder law practitioner handles general estate planning issues and counsels clients about planning for incapacity with alternative decision-making documents. In addition to helping with traditional estate, tax, and pension plans, an elder law attorney can assist the client in establishing eligibility for such public benefits as public housing, Social Security, Supplemental Security Income, Medicare, and Medicaid. An elder law attorney also can be helpful in handling elder fraud and abuse or age discrimination cases. Elder law attorneys can be especially helpful as part of a multidisciplinary team in planning for possible long-term care needs, including nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of elder law practice. Further, elder law attorneys often work closely with accountants, financial managers, doctors, nurses, allied health professionals, social workers, and individuals and organizations involved in providing services to the elderly. The elder law attorney is committed to providing quality legal work for his or her clients and understands that there are many other professionals in the aging network who may be able to provide valuable services for the client.

Settling Your Case without a Lawyer Perhaps you may not be able or want to hire an attorney and still want "your day in court." There are options available to you. The appendix entitled "Settling Your Case without a Lawyer" provides information about the Office of Consumer Protection, small claims court procedures, and mediation and arbitration.

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CLIENT CAPACITY SCREEN* How are you today? What is your name? What is your birth date? What is today's date? What is your telephone number? Where do you live? Do you know where you are today? How did you get here today? What is the main reason you are here today? Do you know who I am? Are you married? Do you have any children/grandchildren? Who is your doctor? Who is the president of the United States? Who is the governor of the State of Hawai'i? Can you count backwards from 100 by 9's? Can you draw a picture of the Washington Monument/Aloha Tower? These are sample questions asked to test a person's ability to understand. Not all questions need to be asked, depending on the appropriateness of the situation, that is, the initial presentation of the client, hearing/visual difficulties, language differences, distractions, mood/illness factors, cultural considerations, and so on. On the capacity screen, the attorney will also have places to indicate such things as the client's general appearance, awareness level, orientation, verbal interaction, memory, and physical functioning. The "Clock Drawing Test" is one method that has been used as a brief cognitive screen by professionals skilled in the field of mental functioning for individuals with questionable competency. The test starts out by requesting a client to "draw a clock and put in all the numbers." The client is then asked to "set the time at a quarter to seven or some other time." Points are given for accomplishing certain instructions in a certain way.

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ATTORNEY COMPETENCY SCREEN* How long have you been practicing law? How long have you been admitted to practice in Hawai'i? How long have you worked in this particular field of law? Do you have any specialized legal education or training? Do you carry malpractice insurance? Do you have a list of current or prior clients you can show me? Do you work with other attorneys (accountants, health care professionals, etc., as appropriate to your case)? Do you belong to any specialized bar organizations (e.g., elder law, family law, estate/probate, as appropriate to your case)? Could you tell me a little bit about (topics from this book)? What are the legal options available to me in this case? How long do you estimate this matter will take to complete? How do you charge for your services? (initial consultation issue should be ascertained prior to this meeting) How much do you estimate that my case will cost? Will I have to pay a retainer fee, and is it refundable? How do you bill clients, and what payment options are available? How do you keep in contact with your clients? How can clients contact you if they need to? How do you resolve disputes with clients? *These are sample questions you may ask a prospective attorney. Not all questions are appropriate. You may already have done some preliminary homework. You may also see a copy of this book on the attorney's shelf— a good starting point for conversations.

2 Estate Planning

Estate planning today means much more than just making a will or a trust. In a larger sense, estate planning encompasses more than distributing your assets following your death. It includes provisions for minimizing tax liability during your lifetime and after your death; provisions for the accumulation, protection, and administration of your assets; and provisions for decision-making in the event you are no longer able to make decisions for yourself. In the largest sense, estate planning is probably best called "life services planning," since good planning for the future should include planning for living in an uncertain future as well as preparing for the distribution of assets upon death. In this chapter we discuss "traditional" estate planning or planning how to distribute your assets to your heirs after your death. Some of the tools and techniques in this chapter will also be helpful during a person's lifetime. Other aspects of life services planning will be discussed in other chapters. (See the appendix entitled "Probate and the Distribution of Property upon Death" for detailed information and for an explanation of some of the common but confusing terms used in estate planning, such as "per stirpes" and "per capita.")

New Uniform Probate Code Provisions No discussion of estate planning is complete without bringing up the subject of "probate," the historically traditional mechanism of transferring assets upon death, and the "probate code,"

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the laws that affect the administration of property of deceased and incapacitated persons. Probate will be defined and explained in greater detail later and the probate process will be outlined in an appendix, but, to set the stage for this chapter, you should know that significant changes to the "Uniform Probate Code" were made effective January 1,1997, in Hawai'i. The Uniform Probate Code has been enacted in various states and is intended to do the following: 1. to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons 2. to discover and make effective the intent of the decedent in distribution of property 3. to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his or her successors 4. to facilitate the use and enforcement of certain trusts 5. to make uniform the law among various jurisdictions New probate code provisions pertaining to protected persons, minors, and incapacitated persons are still being worked on, but the provisions concerning decedents, wills, trusts, and estates are now in effect. The new code provisions even add rules relating to the determination of death and the status of missing persons. Assets In planning your estate, it is critical to make sure that you consider all of your assets—not only your house and other real estate, your car and other valuable personal property, your savings and bank accounts, but also the value of life insurance policies, investments you may own by yourself or with others, individual retirement accounts (IRAs) and other retirement accounts, and virtually any other assets over which you have control. You will also have to determine whether your estate will have control over certain other property when you die. There are situations under which certain property will not be included in your estate, no matter what you state, for example, in your will. A

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simple example of this is if you should state in your will that "I give the Aloha Tower to my friend, Ben." The Aloha Tower does not belong to you; when you die, your will has no control over it. Property that is held with another person as a joint tenant with rights of survivorship are transferred at death by law to the survivor, and does not belong to the estate of the deceased unless he or she is the last joint owner to die. Husbands and wives can own property jointly as tenants by the entireties that provides them with significant protection against creditors and likewise do not belong to the estate of the first spouse to die. Recently the Hawai'i state legislature extended these protections to "reciprocal beneficiaries." The legal concept of a reciprocal beneficiary is very new. In 1997, the Hawai'i state legislature passed a law granting reciprocal beneficiary status to certain unmarried couples who register with the state Department of Health. This law confers numerous rights and benefits upon reciprocal beneficiaries, including inheritance rights and survivorship benefits. (More on this new law will be discussed later in this chapter.) Property held by a sole owner (tenant in severalty) and the share of property held with others as a tenant in common may belong to the estate of a deceased upon his or her death, however. Property held in a living trust belongs to the trust and does not belong to the estate of a deceased. These are just a few examples of different types of property ownership. (Chapter 3 contains a more detailed discussion of the types of property and how property can be held.) If you do not know how your property is held, look at the deed to your house, the title to your car, the way that names are listed on your bank accounts, and titles to other properties. To help you inventory your assets, your attorney may have an estate information form for you to fill out or you can use the simplified one contained in the "Kokua Packet" found at the end of chapter 7.

Native Hawaiian Estate Issues When Native Hawaiians start to put their affairs in order, they face two added and related issues. First, Hawaiian Homes

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leasehold inheritance is legislated and administered through the Department of Hawaiian Homes. Second, the hanai system is rooted in the culture and bound by the ancient laws of inheritance. Neither Hawaiian Homes lease lands nor the hanai tradition are governed by the standard laws of inheritance and probate. Accordingly, wills are not used to transfer Hawaiian Homes lease lands. The Department of Hawaiian Homes Commission has put together some basic information about these two very unique issues. This information is included in the appendix entitled "Na Kupuna."

How to Proceed Once you list your assets, you may find that it is to your benefit to seek professional advice on how to make arrangements to distribute your estate. You will need to weigh all of the advantages and disadvantages of having a will, a trust, or both a will and a trust. There are various factors to consider, including costs, taxes, simplicity, effectiveness, security, and your heirs' ability to manage their inheritance. For example, under the new probate code more people may choose to make wills rather than trusts due to the simplification of the process of making wills and probating estates. However, if you currently have a trust, it is probably advisable to keep it. Even though the concept of "probate avoidance" trusts has lost much favor due to simplified probate rules, trusts can continue to be valuable legal tools in planning your estate. The decision whether or not to use a legal tool is up to you, but consider the consequences for your estate and for your heirs carefully.

Wills One of the first things that comes to mind when facing death is drawing up a will. Even though there is much discussion today about wills being obsolete, they can serve a valuable function even if you make other estate plans, and they should always be considered even if only as a "backup" to other plans. A will is a legal document through which you can express how you wish

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your property (or estate) to be distributed and how you wish other matters to be taken care of after your death. Just to relieve any anxiety, however, not everybody actually needs a will, especially if there is not much of an estate or other "probate avoidance" mechanisms have been set up. Further, as will be discussed later, if a person does die without a will and has a probate estate, the property will usually go to his or her heirs at law anyway without too much difficulty under the new probate code. A will is recommended for most people, however, since it does have benefits (which will be discussed later). First, it is important to know that a will does not avoid probate, even though the probate laws have been changed in most jurisdictions to make life easier for survivors. (The probate estate will be discussed in the next section.) Next, it is important to know that you can change the contents of your will as many times as you wish up to the time of death. Each new will or change to an existing will (called a "codicil") must be executed according to the requirements of the law. You should always review and perhaps change your will (and other estate plans) when there are major changes in your life, such as the death of a spouse, the birth or death of a child, a change in your marital status, a major change in your finances, or a move to another state. Finally, a will is "activated" only when you die and affects only those things you solely own at the time of your death. (An example of what a simple will looks like is included at the end of this chapter.) A will can ensure that your assets in your "probate estate" are distributed according to your wishes. Your probate estate is that property that is controlled by your estate when you die. What is in your probate estate is not necessarily what you control during your lifetime nor necessarily what is in your "taxable estate." Although the subjects of probate and estate taxes will be discussed in greater detail later in this book, a brief introduction to these concepts at this point may be helpful.

Probate Estate Your probate estate is generally all of the property that you own upon your death that can go through the process called

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"probate." As previously discussed, it will not normally include anything in a living trust or anything that is owned jointly with another person with rights of survivorship. Your probate estate will not include anything given directly to a beneficiary named in an IRA or in a life insurance policy. As you can see, you may be able to accumulate a large fortune and be able to distribute it to your beneficiaries upon your death and still not have a probate estate. Avoiding probate does not mean that you will necessarily avoid estate or death taxes. Sometimes these taxes are referred to as "inheritance taxes," but many jurisdictions have ceased to impose taxes on a person who inherits property and follow the procedure of the federal government by imposing any taxes on the estate of the deceased. Your estate may be responsible for taxes imposed on your probate estate plus other assets that were made payable or transferred by law upon your death, such as jointly held property, life insurance proceeds, and assets contained in a living trust. These combined assets may be considered part of your "taxable estate" (i.e., your estate would be responsible for federal and state estate or death taxes).

Will Benefits Under many circumstances wills provide an affordable means of accomplishing estate planning goals and, in an emergency, you can even "do it yourself." With some restrictions, a will can provide for the distribution of your property to certain people or organizations or to disinherit certain people in accordance with your desires. Wills have been used to make special provisions for adopted or illegitimate children. Wills can help avoid family disagreements over your possessions. They can reduce the time it would take to distribute your estate if you died without any preparations. They can be used to set up a testamentary trust that can provide for the management of property after you die for the benefit of others, such as minor children. They can provide for the management of your estate and certain personal matters

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through a personal representative (or executor) who can be nominated in your will. You can also waive a bond requirement for your personal representative in your will. Wills can provide a court with information about the nomination of a guardian of a minor child. They can provide information to your family and friends about your desires for anatomical gifts or the disposition of your body. (Use caution in relying on your will as a sole means of making these instructions known since it may not be located or looked at until after your death.) Under certain circumstances wills can even reduce the amount of taxes that are owed upon your death and can be used to designate an apportionment of estate taxes.

Will Requirements The requirements for a person making a will are fairly simple. First, you must be at least eighteen years old and of "sound mind." Being of sound mind means you have a general knowledge of what property you have; you know who your natural heirs are (such as your spouse, children, parents, and other relatives); you know the nature and effect of making a will; and you have the ability to form a plan in your own mind for the distribution of your property. Second, you must intend for the document to be your will and you must intend to sign it. Since the will expresses your desires, you should not be under any undue influence when you are making it. Although under no "undue influence" may be difficult to define, it basically means that your actions are voluntary and that no one is forcing you to make certain provisions in your will or is taking improper advantage of you. Lastly, you must satisfy certain legal requirements or formalities. A valid will or codicil must be in writing and must be signed by you or by someone who signs your name for you in your "conscious" presence and by your direction. Except for "holographic" wills, which will be discussed next, wills must also be witnessed. This means that they must be signed by at least two persons who witnessed your signing or signed within a

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"reasonable time" after they witnessed your signing or signed after your acknowledgment of your signature or acknowledgment that it was your will. Usually the testator and all the witnesses sign their signatures before a notary and execute a "self-proving clause" (which will also be discussed later). Legally, you do not need to have your will also notarized or, for that matter, witnessed under a new provision of Hawai'i law permitting a person to handwrite his or her will. Before you rely on this mechanism, however, read on. Holographic Wills Hawai'i and several other states now recognize holographic wills (a will entirely written in the handwriting of the testator). While this makes the drafting and execution of wills much easier, it does not necessarily mean that the wills will be clear or even effective. Wills are not holographic if they are typewritten or produced on a word processor. To be considered holographic, the essential elements of the will document must be in the handwriting of the testator. It is possible to use a "fill-in-the-blank" will commonly found in a stationery store and still have it considered a holographic will—provided that the essential elements are in the handwriting of the testator. For safety, however, it may be wise to get two witnesses to sign it. Proof that a will was executed properly with no undue influence may be more difficult without witnesses, a notary, and a self-proving clause to acknowledge that you and your witnesses signed the will. Further, since holographic wills may be easier to "attack," they may be subject to being probated through formal probate procedures rather than informal procedures. More about these safeguards follows. Intent and Safeguards By law, proof of your intent to have a document be your will can be established by "extrinsic" evidence, including, for holographic wills, portions of the document that are not in your

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handwriting. Extrinsic evidence, in this sense, merely means evidence that is not included in the body of the document. Remember that, except for holographic wills, the law requires that wills be witnessed by at least two witnesses. The law does not prohibit witnesses from inheriting under the will. However, by using interested witnesses, you may be opening the door to a will contest if there are disgruntled heirs. A wiser course of action would be to have "disinterested" witnesses. Your attorney can provide witnesses who do not even have to read the will itself. A wise testator will execute a self-proving clause to accompany the will and have all the parties sign the document before a notary. The self-proving clause can then be attached to the will. The self-proving clause, which is signed by the testator and witnesses before a notary, makes certain assertions about the witnessing of the will and the mental status of the testator. This will help prove that the will was executed properly and will make it more readily accepted by the probate court. (A sample will and a sample self-proving clause are included at the end of this chapter.) For many, the best advice continues to be to see an attorney. Testate or Intestate If you die with a valid will, you are considered to have died "testate." If you die without a valid will, you are considered to have died "intestate." If you die intestate, upon commencement of a probate proceeding your probate estate will be distributed to your relatives in accordance with the "intestate succession" laws of the state in which you die or hold property—which may or may not be how you wanted your property distributed. For instance, in Hawai'i, your spouse or reciprocal beneficiary is entitled to your entire intestate estate if you do not have children and your parents are deceased, but he or she may only be entitled to a certain portion if you have children or surviving parents. The distribution of your estate under intestate succession may not be "fair" and may not be in the best interest of your spouse (or reciprocal beneficiary), who may need the money more than your parents or children.

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In Hawai'i under intestate succession laws, if your spouse (or reciprocal beneficiary) does not survive you, your probate estate will be distributed to any children you may have. If there are no surviving children, your property will go to any of your surviving parents, then to grandparents, and so on. Contrary to misconceptions, the state will not take your property unless you do not have any living relatives within a certain degree of "kinship" to you. (See the appendix entitled "Probate and the Distribution of Property upon Death.")

Restrictions on Testators Even if you make a will, there are certain restrictions on what you can do with your estate through your will. For example, a provision in a will purporting to penalize any interested person for contesting the will or initiating other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Also, your spouse or other survivors may be able to claim a homestead allowance, exempt property allowance, family allowance, or elective share which, in the state of Hawai'i, can be substantial. A decedent's surviving spouse or reciprocal beneficiary is entitled to a homestead allowance of $15,000. If there is no surviving spouse or reciprocal beneficiary, and there are minor or dependent children, this $15,000 is divided equally among these children. This allowance is in addition to any share passing to the surviving spouse or reciprocal beneficiary or minor or dependent children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. In addition to the homestead allowance, the decedent's surviving spouse or reciprocal beneficiary is entitled from the estate to a value, not exceeding $10,000, in household furniture, automobiles, furnishings, appliances, and personal effects. This is in excess of any security interests in such property. If there is no surviving spouse or reciprocal beneficiary, the decedent's children are entitled jointly to the same value.

Estate Planning • 41 In addition to homestead allowance and exempt property, the decedent's surviving spouse or reciprocal beneficiary and, under prescribed conditions, the minor children are entitled to a reasonable monetary allowance out of the estate for their maintenance during the period of administration of the estate. This allowance cannot continue for more than one year, however, if the estate is inadequate to discharge allowed claims against it. Many times these allowances diminish the estate to such an extent that there is nothing left for any other heirs or beneficiaries.

Elective Share of Surviving Spouse or Reciprocal Beneficiary The elective share has always been of great importance to some spouses who have been left out of their spouses' will entirely or to some degree. Today, as in the past, spouses and reciprocal beneficiaries can be omitted from the provisions of the other spouse's or reciprocal beneficiary's estate plan. Laws were enacted to give the surviving spouse or the reciprocal beneficiary the option of taking under the provisions of the will or electing a certain share of the deceased spouse's or reciprocal beneficiary's estate. Under the new probate code, the elective share of a spouse or reciprocal beneficiary even includes property that, prior to January 1,1997, used to be excluded from probate, such as property held in trust. Under the new probate law, the elective share of a surviving spouse or reciprocal beneficiary has been dramatically increased. It no longer is dependent on the old concept of the probate estate of the deceased spouse or reciprocal beneficiary and provides for a larger share of the assets. A new term, the "augmented estate," is used to describe the portion of the deceased spouse's or reciprocal beneficiary's assets that are now subject to election. A key feature of the elective share is "the longer the marriage, the greater the elective share." The purpose of the elective share is to provide the surviving spouse or reciprocal beneficiary adequate assets on which to live. Even gifts and trust properties can be

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returned to the estate to supplement the elective share if the probate estate is insufficient to pay off the elective share. Remember, the new reciprocal beneficiary law affects inheritance and survivorship rights. (Determining the elective share is discussed in the "Probate and the Distribution of Property upon Death" appendix.) Personal Representatives Your personal representative (commonly known in the past as an executor) is the person or institution appointed by the court not only to administer and distribute your estate at your death, but to handle other related matters. The personal representative, for example, may be authorized to request information from the deceased's attorney about the deceased's legal matters—a request that would otherwise be denied due to client confidentiality requirements that normally continue after death. Even before a person is formally appointed, however, the personal representative named in the will may carry out written instructions of a decedent relating to the decedent's body, as well as funeral and burial arrangements. This often overlooked provision of the law is important when there is no next of kin or when there is a conflict between the next of kin and a companion or friend of the decedent. Mortuaries usually will not release a body without consent of the next of kin or evidence that the named personal representative is carrying out the decedent's written instructions. This is just one example of the "tricks of the trade" that laypersons may not know about and another reason to see a lawyer to make a will or ask about probate. If you do not nominate a personal representative in your will or if the person you nominated is unable or unwilling to serve, the court may appoint someone who may not necessarily be the person you would want to administer your estate and, unless you provide otherwise, this person may have to post a bond. Currently, in Hawai'i, a personal representative does not need to be a resident of the state provided that the nonresident submits to the jurisdiction of the Hawai'i state courts.

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Probate Probate is the process through which your assets are gathered together, your debts are paid, and the remaining assets are distributed to your heirs. This process used to take a long time and was costly. Now, under the new probate code, the probate process is expedited and, if attorneys are involved, they are no longer paid a percentage of the value of the estate but must charge "reasonable fees." As before, the probate process is public but court hearings will usually be avoided and estate assets will be distributed with less difficulty. As previously indicated, under most circumstances, only property that is included in your probate estate requires probate upon your death. The probated property is distributed according to your will if you had a will and according to the laws of intestate succession if you did not have a will. Again, neither a will nor intestate succession usually determines how life insurance policies, annuities with named beneficiaries, trust properties, or any jointly held properties are distributed after death. Under these arrangements, monies and properties are directly passed to the named beneficiaries and survivors, thereby avoiding probate. Probate Advantages and Simplification Probate, especially under the new code, does have some advantages. It provides an orderly, court-supervised procedure for collecting and distributing a decedent's assets; it establishes a death value for distributed property; and it establishes a short statute of limitations within which creditor claims against an estate must be filed or extinguished. Under the new code, small estate proceedings and administration and distribution of estates are very much simplified. Probate can be especially simple if it involves estates under $60,000 in value. (An overview of the various processes in Hawai'i involved in the distribution of property upon death, including collection of personal property by affidavits, small estates, and the

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administration of estates under $60,000 by the clerk of the court is contained in the appendix entitled "Probate and the Distribution of Property upon Death.")

Jointly Held Property In the past, especially in attempting to avoid the old probate procedures, many individuals put their property in joint tenancy arrangements. For example, many individuals named others as joint owners of stock certificates, bank accounts, and the family home. However, joint ownership can have very serious drawbacks. One is that establishing a joint tenancy can trigger a tax liability. Anything held jointly and available to the decedent may be included and taxable in his or her estate. You never know who will die first. Another drawback is that actions of your other joint owners or their creditors may affect the whole property, including your share. Except for a certain type of joint ownership for married people or reciprocal beneficiaries, called tenancy by the entireties, creditors may be able to attach all or a portion of the jointly held property. Further, joint owners who have equal access to the joint asset may be able to deplete it, even if they had not contributed to it in the first place. The bottom line is that the implications of joint ownership, such as a joint bank account, should be clearly understood.

Multiple-Party Accounts Jointly held property can include multiple-party accounts at a financial institution. Many people use such accounts for convenience during the lifetimes of all parties and as a way to avoid probate. There are some restrictions imposed by law concerning transfers of the account to survivors, however. A transfer to a survivor of a multiple-party account can be set aside in the event that the assets in the hands of the personal representative of the deceased party are insufficient to pay taxes, expenses of administration, and homestead and family allowances. Within a two-year period

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following the individual's death, the personal representative, surviving spouse, reciprocal beneficiary, or someone acting for a dependent or minor child of the deceased may apply for an accounting to find out what the deceased party's net contribution to the account was and request that the contribution be returned to the estate to the extent necessary to discharge the insufficiency. (Ownership during lifetime and transfers upon death of such types of multiple-party accounts as joint accounts with rights of survivorship [JWROS], Payment upon Death Accounts [POD], and trustee accounts are described in the appendix entitled "Probate and the Distribution of Property upon Death.") Estate Taxes It is important to remember that avoiding probate does not mean avoiding estate or death taxes. You should also know that probate fees and estate taxes are two separate matters. Each is calculated differently. As previously indicated, probate fees are no longer set by law but are to be "reasonable attorney fees" determined by the attorney and client. Estate taxes, on the other hand, are calculated on both your gross estate, which includes your probatable estate as well as other nonprobate property such as jointly held property, property held in a revocable living trust, and life insurance policies that you own. Prior to December 31, 1997, under federal law, you had a $600,000 estate and gift tax credit called the "unified credit." The unified credit concept basically means that, with certain exceptions, you could effectively give away a combination of up to $600,000 of property at your death or as gifts during your lifetime. Federal estate tax rates rise very quickly to as much as 55 percent depending on total taxable assets upon death and the amount of nonexempted gifts made during a lifetime. For individuals dying after December 31,1997, the unified credit gradually increases to $625,000 and continues to increase each year until the year 2006 when the unified credit reaches $1 million. If you believe the value of your estate will be over the new limits, it is important to consult with your estate planner for ways to reduce your estate tax liability.

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Trusts by themselves, whether created during a person's lifetime or established through a will, do not automatically minimize or reduce taxes. To take advantage of current tax laws utilizing trusts to reduce tax burdens upon death, you will need to make specific and often irrevocable provisions in your estate plan. Under current federal estate and gift tax laws, one spouse may give an unlimited amount to the other spouse (assuming the spouse is a U.S. citizen) during his or her lifetime and at his or her death with no gift or estate tax owed. Note that Hawai'i's reciprocal beneficiary law does not have any effect on federal law. The tax danger appears when the surviving spouse dies. The combined estates may well exceed the current unified credit and estate taxes will be owed. For example, let's assume that the couple jointly owns $700,000 worth of property. Upon the death of the first spouse, all that spouse's share of the property, $350,000, would be given to the surviving spouse. As noted above, gifts to spouses are not taxed, so no estate taxes would be owed at the death of the first spouse. However, when the second spouse dies, heor she owns the entire $700,000. This means that if the second spouse dies in 1998, $75,000 ($700,000 minus the $625,000 unified credit) would be subject to estate taxes. With proper planning this situation can be avoided. One idea is the use of what is called a credit shelter trust, sometimes also called a Qualified Terminable Interest Property (QTIP) trust. Instead of giving the surviving spouse the property outright, the $350,000 might be given to the credit shelter trust. This trust would hold the $350,000 for the benefit of the surviving spouse for life and when the surviving spouse dies, it could be given to the children. While the second spouse would have use of the property while he or she is still alive, if the trust is properly written, the second spouse does not include the $350,000 held in trust in his or her estate. This means that if the second spouse dies in 1998, his or her estate, instead of being worth $700,000, would be worth $350,000. Since the unified credit amount is greater than the $350,000, nothing would be subject to estate taxes. There are many other plans you can use to reduce your estate taxes, such as a charitable trust, where you can give your spouse

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the property for life and then have a charity take the property when he or she dies. Since Hawai'i is one of the most diverse and multicultural states in the Union, spouses often are not U.S. citizens. For gifts to a noncitizen spouse, the gift tax marital deduction is currently limited to $100,000. Remember that Congress may change the laws on estate and gift tax exemptions.

Estate Planning for Unmarried Couples While the State of Hawai'i did pass a law in 1997 to offer reciprocal beneficiary status to adult couples unable to marry legally, it did not recognize same-sex marriages or common-law marriages. Yet legal documents can still be crucial in determining who gets what when one partner who is not married to the other partner dies. In the past, Hawai'i law did not provide legal protection for common-law or same-sex marriages. Many partners have been deeply hurt and disappointed when they were left out of the will of their partner or when their partner did not provide for them in some other manner.

Reciprocal Beneficiaries Under the new law, reciprocal beneficiary status may be conferred on two unmarried adults who are legally prohibited from marrying under current law. In order to benefit from the law, eligible couples must register a signed declaration of reciprocal beneficiary relationship with the Hawai'i state Department of Health. The declaration must be signed by each of the parties and must not have been obtained by force, duress, or fraud. For estate planning purposes, reciprocal beneficiaries receive certain rights and benefits in Hawai'i, including inheritance rights and survivor benefits, jointly held property rights, such as tenancy in the entirety and public land leases, and legal standing for wrongful death and crime victims' rights. The new law faces legal challenges and may be modified by the legislature. If you are in this type of relationship, you should make sure you know the duties, rights, and benefits under the new law.

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Currently, while there are new laws that define the relationships and benefits for reciprocal beneficiary partners and unmarried couples, many may choose not to enter into a formal, registered arrangement. Further, there will be pressures on the legislature to change the reciprocal beneficiary statute to exclude certain categories of people from its coverage. Accordingly, each partner may have a different expectation of what the joint living arrangements require. While both partners are still alive, putting intentions, designations, and directions in a legally recognized document can help clarify and solidify expectations. While the new reciprocal beneficiary law offers legal standing, rights, and benefits, estate planning for partners or other unmarried couples can still be very sensitive. Some of these sensitive issues can be minimized with proper planning. The question of who should be nominated as personal representative is just one area that can be contested. If there is any possibility that your surviving partner will face bitterness and disapproval from your relatives, you may want to name an alternate personal representative who may be able to act as a backup and buffer for your partner. Another sensitive area concerns nonprobate assets such as life insurance, individual retirement accounts, and pension benefits. Whether you should name your estate or your partner directly to receive benefits depends on your personal situation. Family members who may disapprove of your relationship may contest the distribution of these assets. If privacy is a concern, then you may want to name your estate as the beneficiary of these assets and use your will to name your partner as the beneficiary of your estate. However, if you suspect that relatives will contest your will, you may want to avoid probate and name your partner directly as a beneficiary. Seek professional advice to determine the advantages and the disadvantages of the different approaches. If you anticipate a will contest, you may want to have supplemental documentation to support the validity of your actions. For example, you can video tape the signing of the will, take extra measures to have "credible" witnesses, or obtain doctors' opinions in writing to verify your mental capacity at the time you sign your will or other legal documents. You may also con-

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sider a "will substitute" in an attempt to avoid a contest. Usually the chances of a successful will contest or other legal documents is lessened if you have a strong attorney advocate on your side throughout the process and other credible participants in your legal preparations. Even with the new legal protections for reciprocal beneficiaries, unmarried couples may still want to make sure that each partner has financial support while the other's estate is being probated, especially if he or she is elderly, disabled, or unemployed. There are other techniques to avoid or minimize unpleasantness that an estate planning attorney familiar with domestic partner relationships can help you with. Trusts In the old probate process, the oftentimes court-supervised means of transferring assets or property from the deceased person to a beneficiary was often costly and time-consuming. To avoid these problems, many people established revocable living trusts. These living trusts can still be used to avoid probate and, depending on the size of the estate, to minimize estate taxes. They can also be used to do other things. Revocable Living Trusts A trust is legal arrangement whereby you (the settlor) can legally transfer your assets to another person (the trustee) who is designated under the terms of the trust to take care of the assets for the benefit of a third party (the beneficiary). The trustee can be yourself, another person, or a fiduciary institution. The beneficiary can be yourself or whomever you name. Although there may be some advantages to naming a trust company as trustee under certain circumstances, there is no requirement to do so. The trustee holds and manages the property for you and your beneficiaries. If your trust commences during your lifetime and is revocable, it is called a "revocable living trust." With such a living trust, you can be your own trustee, manage your own trust, change

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your trust at any time, make decisions concerning your trust, and appoint a successor trustee to carry on after you die or become incompetent. All these terms are written down in a trust agreement. Trusts can be created in two ways. You can set up a "living trust," which takes effect during your lifetimes, or you can create a "testamentary trust" in your will, which does not take effect until you die. However, note that testamentary trusts, since they are created in wills, do not avoid probate. Irrevocable Living Trusts In contrast to a revocable living trust, there is an "irrevocable living trust." Irrevocable means that once it is created and property is placed in it, the terms cannot be changed and the donor cannot require that the property be given back to him or her. This technique is usually used for more specialized or sophisticated tax and estate planning. There are irreversible consequences in setting up an irrevocable trust, so seek professional advice before doing so. Advantages of a Trust While trusts are usually more expensive to create than wills, their benefits sometimes outweigh their higher cost. Property included in a trust usually does not go through probate. Avoidance of the cost, time, and publicity of probate and the ability to maximize tax benefits for married people make living trusts very appealing. Another benefit is providing for the management of property if a person should be declared legally incompetent or should become otherwise incapable of handling financial affairs. In this sense, a living trust can be a valuable alternative to guardianship. While a trust has distinct advantages, you should be aware that revocable living trusts usually cannot be used to avoid creditors or to get around eligibility guidelines for such assistance programs as Medicaid. Since the trustee retains control of the trust, its assets are deemed to be available for payment of debts. If you create a living trust, make sure that you or your attorney

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properly transfers your property into the trust. Failing to transfer the title of your property to the trust is a very common mistake that could be quite costly. If you fail to change the title of your property to that of your trust, the trust cannot control that property. If you do not feel that you know what you are doing, avoid relying on "living trust kits." Persons involved in probate and trust administration actually have three major responsibilities. First, they must take an inventory of assets. Second, they must pay off debts and taxes from the assets that are accounted for. Third, they must distribute the remaining assets to the designated beneficiaries. In this respect formal probate openings and closings offer the most formality and, perhaps, security, since in trust administration there is no court supervision. In making a trust it will be up to the person establishing the trust (the settlor) and the attorney drafting the trust document to determine what structure, formality, and supervision will be necessary or helpful to impose on the trustee. These matters should be carefully considered and drafted for inclusion in the trust document. i In addition to your living trust, you should also have a "pour over will" to "pour over" into the trust all other assets that may not have been transferred into the trust at your death. Trusts for Unmarried Couples

Unmarried couples can use trusts as a way to avoid probate and its possible publicity, will contests, and, in some cases, potential family animosity. Since estates will not be tied up in probate, financial support of the survivor will be less likely to be interrupted. The trust can also serve as a safety net if sufficient assets are made available and proper instructions and directions are provided. Who Needs a Trust?

Although trusts can be good estate planning tools, not everyone needs a trust. Even if you own your own home or other real property and have only moderate assets that need to be

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probated, you may not need a trust. If you own assets over the estate tax exclusion amount, previously discussed, and especially if you are married and have children, however, it may be wise to look into "tax avoidance" trusts. Remember that Congress has changed the combined estate and gift tax exemption. Beware of attorneys or financial planners who oversell their products, including living trusts, and read the warning about estate planning schemes and scams at the end of this chapter. Once again, even if you have set up a trust, you should still have a will, not only to take care of nonproperty matters and those assets which may not be included in the trust, but also to take care of specialized kinds of property matters such as copyrights, trademarks, and patents. Also remember that since the administration of living trusts normally does not involve the courts, it is up to you to ensure that appropriate provisions to provide structure, formality, and supervision are included in the trust document. The bottom line, however, is that under many circumstances, a properly structured and funded revocable living trust can be used to avoid probate, eliminate the necessity of guardianship of a person's property, and eliminate or reduce estate taxes.

Gifts Many people want to give their property away to others while they are still alive. Besides the personal satisfaction of gift giving you will enjoy, you can also decrease the size of your estate and thus minimize the taxes after your death. Under current tax laws, you can make an annual gift of $10,000 to as many people as you wish (whether they are in your family or not) without having to worry about any gift tax. You can also pay school tuition or medical bills on behalf of another person who need not be a family member gift tax-free. Also, you can give an unlimited amount to charity without gift tax consequences. The person receiving the gift does not have to pay income tax on the gift. Further, if you are married, your spouse can join with you and authorize you to use his or her additional $10,000 exemption in gifts you are making to each other person. Of course, one spouse can give to the other spouse (assuming he

Estate Planning • 5 3

or she is U.S. citizen) an unlimited amount totally tax-free. Remember, Hawai'i's reciprocal beneficiary law does not have an effect on federal tax laws. You should use great caution when you give away property, especially real property. There are too many cases where people who have given their property to others, including their own children, change their minds and cannot get it back. We had a couple who came in because they were facing eviction. Many years before, in order to avoid probate and to qualify for Medicaid they had put their son's name on their old but large home. Eventually the son married and had children and the older couple was happy to baby-sit the grandchildren. As the years went by, the family grew and the couple agreed to move into the basement. Eventually, the son got divorced and through the divorce negotiation process agreed to give the house to his wife. For a while the ex-daughter-in-law was happy to have the couple living in the basement and baby-sitting the children. Once the "boyfriend" moved in, however, they were asked to leave. The couple now rides the bus to see the grandchildren. To avoid being evicted from the home they once owned, this couple could have kept their home and made other estate plans or at least retained a "life estate" in the property. A life estate would have allowed them the right to remain on the property as long as they lived, to rent it out, to make improvements on it—to do almost anything except destroy it, sell it, or give it away. Giving away property may have unanticipated tax consequences for you and for the recipient. You may have to pay or at least account for gift taxes. Those receiving such a gift may have to pay higher capital gains taxes if they later sell the gifted property since they will obtain the property at the same tax basis as the person who gave it to them. Such capital gains taxes can be especially burdensome when highly appreciated property such as a home is involved. Congress has recently changed the capital gains law, so make sure you ask your attorney or financial advisor for information before making gifts. Gifting can also lead to disqualification for certain needs-based public benefit programs such as Medicaid long-term care coverage for a spouse. In today's era of quickly changing laws and policies, it is important

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to check with advisors or at least to research any changes, including changes to the material presented in this book. For example, the law recently changed in Hawai'i to recognize reciprocal beneficiaries as having many of the same benefits under the law as spouses. However, Medicaid guidelines involve both state and federal laws. The status of reciprocal beneficiaries in the context of Medicaid may not include reciprocal beneficiaries but this may change if Hawai'i seeks an exemption from the federal government's policy. As previously suggested, it is often beneficial to retain control over property until death so that beneficiaries receive a "steppedup basis" on the property. When property has a stepped-up basis, the tax basis of the property takes on the fair market value at the date of death rather than the original cost of the gift. A stepped-up basis is significant when heirs calculate capital gains tax upon the sale of the house. Remember, Congress has changed both the estate and gift tax exemption and the capital gains tax laws. Still, it has been very shocking to individuals when they find out that they could have saved thousands or even hundreds of thousands of dollars in taxes if the deceased person had not tried to save money by not consulting an attorney. Unfortunately, "do-it-yourself" estate plans can sometimes be more damaging than not planning at all. Consult with an attorney or tax consultant before you make any significant gifts.

Estate Planning Schemes and Scams Most professionals involved in estate planning are competent and honest. Some individuals or companies, however, use scare tactics or misinformation to get people to purchase their estate planning package, which is often very expensive and may include unnecessary or overpriced items. You may be pressured at "free seminars" by so-called estate planning experts, to "avoid probate" and to establish a "tax savings trust" to reduce estate taxes and to purchase life insurance to pay for probate fees and any estate taxes owed. Some of these tools may be of value, especially if you are considering probate and tax savings techniques. However, they may turn out to be unnecessary and very

Estate Planning • 5 5

expensive. These "experts," who may include attorneys, financial planners, and insurance agents, may just be trying to sell you a legal product or an insurance policy you may not need. An older woman called about a free seminar that was advertised in a senior citizen publication and which she had attended a few months before. At the end of the seminar she found herself writing a check for nearly $2,000 for an estate plan. She was a widow. She had no children. She did not own a home. She lived on Social Security benefits. She had under $10,000 to her name. She was taken advantage of by a "very friendly and courteous young man." Her "estate plan" did not even include any powers of attorney or any health care directives (which will be discussed in the next two chapters). As you recall from the information about the new probate code, the transfer of property upon death is much more simplified than before. Most likely the probate costs for this woman's estate, if any, would not have amounted to as much as she paid for her estate plan. To add insult to injury, considering her financial situation, she would probably have received free estate planning from a legal services organization such as UHELP and her plan would have included appropriate powers of attorney and health care directives. The state Office of Consumer Protection has its eyes on some of these scams, but more and more are cropping up. Another type of scheme is often used by family members, especially against older people with failing memories. A person will offer to assist "Aunty," for example, with her financial affairs and will get her to sign a power of attorney. Later, this individual will transfer her house to himself without anybody knowing about it. Upon Aunty's death, the nephew will swear that this is what she wanted to do. Another blatant scheme is for a family member to forge a signature on a deed. It is often hard to determine the authenticity of a signature, especially if an individual's signature goes through changes after the onset of physical or mental incapacity. We have had several frantic calls to our office after individuals have looked up their properties in the state Bureau of Conveyances at our suggestion. Some found that they were no

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longer the owners of record of their property. Luckily most were still able to do something about the situation—some through civil fraud actions and some by calling the police. By the way, it is rather simple to do a brief check on your property. You may be surprised at what you find. Be sure to plan for your future and watch out for schemes and scams. Meanwhile, take care of yourself first. Do not be stingy. You worked hard for your money. Enjoy it. Take that trip to Las Vegas or Hong Kong. You do not need to leave everything to your children or your other heirs.

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SAMPLE WILL LAST WILL AND TESTAMENT OF JANE DOE PART A A-1 I, Jane Doe, residing at 2513 Dole Street, Honolulu, Hawai'i 96822, declare this to be my Will and I revoke any and all prior wills and codicils. I am married to Sonny Doe. I have two children, namely, Stormy Doe of San Francisco, California, and John Doe of Honolulu, Hawai'i. A-2 Except as provided in this Will, I have intentionally omitted to provide for any other persons, whether they claim to be related to me or not. I desire to have my body cremated and I do not wish to have my body embalmed. I grant my Personal Representative the authority to carry out my instructions relating to the disposition of my body.

PART B DISTRIBUTION OF PROBATE ESTATE It is my intention by this will to dispose of my probate estate comprising all of my property, real, personal, or mixed, tangible or intangible, of whatever nature and wherever situated, of which I may be seized or possessed or to which I may be entitled or have an interest at the time of my death. I hereby incorporate by reference a Letter to my Personal Representative which I have executed prior to the execution of this Will. This letter lists certain items of personal property to be distributed and provides information and instructions to my Personal Representative. Except as provided in the previously mentioned Letter to my Personal Representative, I give all right, title, and interest to my property, real, personal, or mixed, tangible, or intangible, wherever situated and of whatever nature as follows:

58 • The Elder Law Hawai'i Handbook I. I give my blue, pineapple-design, Hawaiian quilt to Bishop Museum, located in Honolulu, Hawai'i. II. I give the rest, residue, and remainder of my estate to my husband, Sonny Doe. In the event that he shall die before me, die within 30 days of my death, or if we should die at the same time, then I give all of my said rest, residue, and remainder of my estate in equal shares to my children, Stormy Doe and John Doe. If one or both of my said children shall die before me, or die within 30 days of my death, or if we should die at the same time, then I give the share that such deceased child would have received to the issue of said child, said issue taking by right of representation.

PART C PERSONAL REPRESENTATIVE PROVISIONS I nominate and appoint my husband, Sonny Doe, as my Personal Representative. In the event that my Personal Representative predeceases me or shall for any reason refuse or be unable to serve or continue to serve as my Personal Representative, then I appoint my son, John Doe, as my Personal Representative. I request that no bond be required of my Personal Representative. I give said Personal Representative the fullest power and authority, as granted by law, in all matters and questions of my estate, to act at such times and upon such terms and conditions as my Personal Representative may deem advisable. I request my Personal Representative to pay my funeral expenses and expenses of my last illness out of my estate as soon after my death as can be done conveniently without unnecessary sacrifice of any of the property of my estate. I give my Personal Representative power to pay, to provide for the payment of, to extend, or to renew any legally enforceable indebtedness upon such terms and for such time as my Personal Representative deems appropriate. I grant my Personal Representative the authority to carry out my instructions relating to the disposition of my body, including funeral, memorial, and burial arrangements. IN WITNESS WHEREOF, I have executed my Will by signing this page on this day of , 19 at Honolulu, Hawai'i.

JANE DOE

Estate Planning • 59 SIGNED, AND DECLARED by the said Testator, JANE DOE, to be said Testator's Will and in the presence of us, who have signed our names as witnesses at Honolulu, Hawaii, this day of 19 •

(WITNESS)

(ADDRESS)

(WITNESS)

(ADDRESS)

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SAMPLE SELF-PROVING CLAUSE STATE OF HAWAI'I

)

COUNTY OF

)

) ss.

We, Jane Doe, , and , the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's last will and that the testator signed willingly or directed another to sign for the testator, and that the testator executed it as the testator's free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of the knowledge of each of the witnesses the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue influence.

JANE DOE (WITNESS) (WITNESS) Subscribed, sworn to, and acknowledged before me by JANE DOE, and subscribed and sworn to before and , witnesses, this day of , 19 .

Notary Public, State of Hawai'i My Commission Expires:

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SAMPLE LETTERIO PERSONAL REPRESENTATIVE LETTER TO MY PERSONAL REPRESENTATIVE I am writing this letter to provide my family, friends, and Personal Representative with basic information about my estate, to provide directions on what to do upon my death, and to provide for the disposition of certain items of "tangible" personal property upon my death. I intend to execute a will after signing this letter. I may, from time to time, change this letter and/or the list of tangible personal property to be distributed upon my death. If I make changes, I will add the changes to this letter or add additional pages. When I add to this letter I will sign and date such changes. I will keep this letter with my will. I have gathered all of the legal and financial documents that I feel are important and have placed them in the filing cabinet in the living room. I have labeled the file, "Estate Plan." There is a bright label which states that there is "Important Legal Information Inside" on the outside of the drawer. There is also a "Kokua Packet" in a plastic bag in the file with much helpful information. At the time of my death, I would like to have my body cremated as soon as possible. I do not want my body to be embalmed. I have already made arrangements and have paid for a cremation. My contract with the R.I.P. funeral home and instructions from the funeral home are in my filing cabinet in my living room under "Estate Plan." I do not want to have a formal memorial service. I would like my family and friends to take my ashes and scatter them in the ocean off Diamond Head. Upon my death, please be sure to contact my brother, Robert Doe, who is in the Merchant Marine. Although his address changes constantly, his most recent address should be in the previously mentioned "Kokua Packet." List of Tangible Personal Property I give my stamp collection to my nephew, Johnny Deer. I give my autographed copy of the "Akamai Kupuna" to my niece, Bambi Deer. Jane Doe

Date

3 Personal and Business/Financial Affairs and Legal Preparations

In addition to traditional estate planning, another important area of elder law concerns planning mechanisms to take care of your money and your person during your lifetime, especially in the event you cannot take care of yourself. This includes obtaining the necessary legal documents to allow you to maintain control of your own affairs or to grant another person of your choice powers to assist you when you no longer have the capability. Putting your financial affairs in order can also help your spouse or other survivors avoid worries about who will pay the bills and how those bills will be paid. This is especially true when one spouse or partner has taken complete charge of all financial matters. Your finances are important, but you may also need someone to take care of your person and to make decisions for you. You can help your spouse or other survivors avoid the necessity of court intervention, such as through the guardianship process, by making alternative legal arrangements ahead of time as well as by finding out about community resources and support available to you even before you need them. (Chapter 6 contains a summary of protective services, including guardianship, which are available in the event that court intervention is required.)

Crisis Management Spouses and partners are sometimes kept in the dark when it comes to financial and personal matters, and they may not be the only ones. Parents may be reluctant to discuss financial matters with their children, and the children may not be prepared in a

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time of crisis. When a crisis occurs, children, who may live far away, can be suddenly called upon to manage the crisis and to take charge of their parents' finances. Of course, now is the time to discuss financial matters with the person you will or may be caring for before tragedy strikes or Alzheimer's disease or dementia erodes memory and decisionmaking capacity It may be very difficult for that person to think about giving up or sharing any control of his or her finances, especially if he or she used to be independent and self-reliant. Sometimes people cannot face the prospect of their own impending incapacity or death. It may take time, patience, and encouragement to let that person know that in trusted hands financial and emotional burdens can be lessened, especially if some preparations have been made. Whether you are a spouse, a partner, an adult child, or a close friend who may have to take charge in the event of an emergency, you will need to know the location of any bank accounts, IRAs, certificates of deposit, safe-deposit boxes, and other sources of income. Before a crisis catches you off guard, you will also want to set in motion a plan to have access to one or more of these sources of income. If you have not already done so, you may need to contact a lawyer during an emergency to see if you can obtain legal authority to handle the disabled person's financial affairs and to take care of his or her person. Of course, it is usually less expensive, both financially and emotionally, to do this ahead of time rather than wait until a crisis happens. If you are a child who lives far away, now is also the time to find out who can help if you feel that you cannot. Other siblings, relatives, or friends who live closeby may be able to answer the immediate call for help. As for supportive services, in Hawai'i, the County Area Agencies on Aging on the various islands have information and referral services. Your elder law attorney or the University of Hawai'i Elder Law Program (UHELP) can put you in touch with an appropriate agency.

Financial Preparation for Caregivers If you are taking charge of someone's finances, take advantage of the many financial services offered by banks and financial insti-

Personal and Business/Financial Affairs and Legal Preparations • 6 5

tutions. If there is an absolute bond of trust between you and the person you are helping, ask him or her if it is alright to meet his or her bankers and, if appropriate, at the same time to sign an authorization to allow you access to information about the account, safe-deposit box, and other financial matters. You may wish to have the bank contact you if the account is overdrawn or suspicious withdrawals have been made. Neighborhood banks where the person you are helping does his or her banking often know their customers and see them regularly. Some banks have gone out of their way to prevent suspicious transactions and have even alerted authorities to suspected abuse. Ultimately the person you are caring for may even wish to open a joint account or a "convenience account" with you so that you will have access to it. Whether or not you are involved directly in managing their finances, encourage your parents, partner, or friend to make direct deposits of Social Security checks, pension checks, and other regular payments. Direct deposits can minimize the problem of forgotten, lost or stolen checks. In addition, it is often beneficial to arrange for automatic payment of as many regular bills as possible. Automatic payment plans help minimize the risk of having utilities shut off or evictions commenced for nonpayment of bills. Utility bills, rent, and maintenance charges are some examples of recurring bills that can be paid automatically by a bank or other financial institution. You should be aware that the federal government intends to require that anybody receiving benefit checks such as Social Security or veterans' benefits have such benefits directly deposited into an account. Check with the financial institution for information about their programs.

Power of Attorney A power of attorney is a key document in planning for the time when a person becomes incapacitated. If you feel you are a person who will need someone to help you when you become incapacitated, you should see an attorney to draw up this very important document. While it is hard for some individuals to imagine that they may not be able to make financial and legal decisions for themselves, it is wise to be prepared. You can have

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powers of attorney created to fit your present or future needs. There is even a type of power of attorney, the durable power of attorney for health care, which is now recognized throughout the country as an effective means of making health care decisions for those who are no longer able to communicate. (This document will be discussed in detail in the next chapter, but the sample power of attorney at the end of this chapter includes health care provisions. Accordingly, make certain you read the next chapter to get the full flavor of how powers of attorney can be used to make health care decisions.) There seems to be a lot of confusion about powers of attorney, so it may be beneficial to go over some basic concepts and terminology. A power of attorney is a written instrument through which you (the "principal") designate another person as your "attorney-in-fact" or agent and it grants that person certain powers over your affairs such as the power to access your bank account, to sell your car, to pay bills, and to collect rents and manage property, among many others. You should know that you do not necessarily give up any power to make decisions for yourself when you make a power of attorney, but that you grant another individual power to act also. You may designate more than one agent to act on your behalf, in a single document or in multiple documents. Multiple agents may act independently or be required to act in concert with each other. To keep things simple, most of the time a person will appoint one person as agent and others as alternates. Alternate agents will be discussed later in this chapter. Generally speaking, the attorney-in-fact's (agent's) powers granted in the document are effective during the lifetime of the person granting the power—unlike the powers of a personal representative during probate, which are effective after a person dies. It is important to know that an attorney-in-fact does not have to be an "attorney." As discussed in chapter 1, when you talk about attorneys generically, you are usually referring to an "attorney-at-law." The term "attorney-in-fact" is a formal means of describing the agent named in the power of attorney. A power of attorney must be executed while you are still mentally competent. Attorneys can tell you about the many times

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that a family, friend, loved one, or organization asks to have a power of attorney made for a person who is no longer mentally competent. By then it is too late and a more difficult and expensive alternative, such as a guardianship, may have to be pursued. You should know that a person may nominate a guardian in a power of attorney document for consideration of the court should a guardianship action be required in the future. Families may become very upset when they find out that a certain person has been appointed as an agent. If you think your family might challenge the person you designated as your agent because they might claim you were not competent at the time the document was signed, you may want some documentation proving your state of mind. It may be wise to request that witnesses sign with you in front of a notary to attest to your mental capacity. As a matter of fact, witnesses are required for some transactions that use a power of attorney in order to comply with requirements of law, especially those involving land or health care. Witnesses can also ensure a better chance that the document will be recognized as "valid." Many people do not realize that powers of attorney generally cease to be effective upon death or the incapacity of an individual unless they are "durable." Durable Power of Attorney A durable power of attorney is a power of attorney that contains a provision stating that the power will not be affected or terminated by mental or physical disability. For many years the laws of most jurisdictions, including Hawai'i, provided that powers of attorney cease to be effective during periods of incapacity of the principal. For many people this is precisely when they would have wanted these powers to be effective. To help resolve this problem, the Hawai'i legislature enacted a law which provides that an individual may make a power of attorney that is to remain in effect or go into effect upon the mental disability of the principal, if this intention is made known in the document. There are key words that need to be used. An example is a phrase stating that "the powers granted in this power of attorney shall not

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be affected by my subsequent disability or incapacity." This is what is meant by the term "durable." For instance, if an individual had signed a durable power of attorney and subsequently suffered a stroke and became mentally incapacitated, the power of attorney would still be valid. This provision is especially important in a medical crisis, when one's mental disability may otherwise terminate the power of attorney. Springing Powers of Attorney A power of attorney can be drafted to take effect immediately or to "spring" into effect on a future date or upon a specific event or occurrence. If a person does not wish to grant authority to another person to act immediately, a useful approach to planning for possible incapacity is to make a "springing power of attorney," which would take effect upon some future event or condition. For example, you may wish to have the power of attorney become effective only upon certification by a doctor that you are incapacitated. There are even "hybrid" powers of attorney that your attorney can draft for you through which you can have certain powers become effective immediately and other powers become effective at some future time. You can have powers of attorney that "spring" into effect either upon your incapacity or upon your execution of a document permitting all or certain actions on your behalf. For example, you can execute a power of attorney in which the powers would go into effect only upon your signing and dating a statement included in or attached to the power of attorney itself or which, alternatively, would go into effect upon certification by one or more doctors that you are unable to communicate. This way you would have a power of attorney ready to go when you feel the agent should do things for you or when you can no longer communicate. General and Special Powers of Attorney The two basic types of powers of attorney are the general power of attorney and the special power of attorney. A general power of attorney is a very broad and sweeping grant of authority and should be used with extreme caution. Unless otherwise pro-

Personal and Business/Financial Affairs and Legal Preparations • 6 9

vided by law or regulation, this instrument authorizes another person to do any legal act that the principal might do for himself or herself. In contrast, a special power of attorney grants authority to an individual to act on behalf of the principal in specific matters, such as selling a car. A special power of attorney reduces the risks involved in giving another person broader powers. For advance planning purposes, general powers of attorney are prepared to take care of most possible future contingencies. (Again, read the next chapter, which discusses the special requirements for health care powers of attorney.) Warnings about Powers of Attorney Powers of attorney are important legal documents that can affect the management of your property and personal affairs. You should know and trust the person to whom you grant such power. Generally speaking, if you are uncertain about your agent, it is wise to consider other alternatives or limit the powers granted and the duration of those powers as much as possible. Remember, once your agent acts on your behalf with permission (through the power of attorney), it may be impossible to undo what the agent has done. Abuse of Powers of Attorney I have seen numerous incidents of abuse of powers of attorney, many involving taking money from a bank account or transferring the title of a home. Even in cases where the victims have some ability to recover lost property, they may be reluctant to pursue legal options, especially if the person who abused the power is a family member. One example of abuse of a power of attorney involved a grandmother who came to our office to ask us what to do about her dwindling bank account and unpaid bills. She had been ill for a few years and was happy that her grandson had offered to help her out. After a while the grandson suggested that she sign a power of attorney form he got from a stationery store. He said that he would take care of her bills by using funds from her checking account. She began receiving notices from creditors

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that her bills had not been paid. She went to the bank and asked how much money was in her account. She was shocked to see how little was left. She noticed that her grandson had purchased a new car and wondered where he had gotten the money. It turns out that he got it from her account. When she asked him about the money, he told her to leave him alone and not bother him anymore. She was angry and sought help from the family, but they could not help. She did not want to get her grandson in trouble, but she at least wanted to stop the financial abuse. To make a very long story short, we helped her revoke the power of attorney and reestablish her credit. She never did pursue getting her money back from her grandson, but she did make a new will that disinherited him. If the potential attorney-in-fact or agent cannot be trusted to act properly upon your incapacity, consider other planning alternatives, such as engaging the services of a trust company, money management company, attorney, or independent social worker. Also, it is best to "tailor" documents to fit your personal needs. Be wary of stationery store forms. Recent court decisions have ruled that agents appointed under a power of attorney should not have the right to gift property of the principal to themselves unless specifically authorized in the power of attorney. If these powers are included, however, it makes it even easier for a person to improperly take funds and there are even tax consequences to such a power. As will be discussed in the chapter on elder abuse and neglect, misuse of a power of attorney involving a dependent adult can even be the basis on which the State of Hawai'i Adult Protective Services may intervene in the life of an adult. Because powers of attorney are potentially dangerous, it may be wise to consult with an attorney to determine ways to protect yourself. Revocation

You have the right to revoke, terminate, or modify a power of attorney at any time. You may wish to ask your lawyer to include a "self-executing revocation date" if you do not want your agent to have indefinite power. Keep track of the agent or agents to whom you give power of attorney and where the documents are

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kept. You can revoke or cancel a power of attorney orally or in writing. To be safe, you may wish to revoke it in writing and give a copy of the revocation document to your agent and to any person, agency, institution, or organization your agent may have dealt with. Keep in mind that death usually terminates the power of attorney automatically. Alternate Agents You should also strongly consider appointing alternate agents in the event your agent is unwilling, unavailable, or unable to act or is deceased. Neglecting to consider an alternate agent often results in a most frustrating situation, where seemingly wellprepared plans and directions cannot be followed because no one is authorized to act as a successor to the originally named agent. Many people have called me to ask if they can delegate the power they have under a power of attorney to another individual. If the principal has not granted the authority to name a subagent, and if the principal is no longer capable of executing documents, the originally named agent may not have the authority to further delegate power. This is an area of continuing concern, especially if the named agent is going on an extended trip, has a terminal conditioh, or is facing a limitation of his or her own capacity from such conditions as Alzheimer's disease or a stroke. Even though you may think that it would never happen to you, consider designating alternate agents in the event your agent cannot or will not act for you. If artfully constructed, your power of attorney can limit the powers of an alternate agent if you do not have the same confidence in that person as you had in the primary agent. Recognition and Nonrecognition of Powers of Attorney Be aware that there is generally no requirement for an individual, organization, agency, or institution to recognize or accept a power of attorney. To be certain that your power of attorney will be accepted, you should check this out in advance. A common way to find out if the power of attorney will "work" when you need it is to present it to the bank, credit union, stock brokerage

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house, pension plan administrator, or other person, agency, or entity you think your agent may need to contact and ask whether the power of attorney will be recognized. Sometimes the person or entity will merely ask for a copy for future use. Sometimes the person or entity may make specific requests to add to or alter your document. Some financial institutions will require that a "fresh" power of attorney be executed every few years or that an affidavit be prepared by an agent stating that the power of attorney has not been revoked. Some financial institutions require that an agent sign an indemnification form to protect the institution from liability. If the person or entity accepts your document, it is best to put this acknowledgment in a written format to avoid the possibility of future confusion. Attorneys commonly draft acknowledgment forms for their clients. Sometimes a person or entity may flatly refuse to recognize your power of attorney. Even if this happens, it is much better to find out ahead of time and to make alternate plans. Your attorney may have some specific advice about this common problem. The Internal Revenue Service (IRS) and the Social Security Administration have their own forms and requirements. If you are unable to prepare or sign tax returns, you may ask the IRS for Form 2848, which will permit another person to represent you before the IRS, including filing tax forms on your behalf. You should know that the IRS now has rules that provide that a general, durable, or even limited or special power of attorney will be accepted by the IRS if it satisfies the same requirements as Form 2848. Powers of Attorney and the Social Security Administration The Social Security Administration generally does not utilize powers of attorney created by Social Security beneficiaries. If you are unable to sign your Social Security benefit check and need somebody else to receive it for you, the Social Security Administration requires you or someone assisting you to fill out a "Representative Payee" form. After doing its own investigation, the Social Security Administration names an appropriate person to receive your Social Security checks and use the proceeds for

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your benefit. This information has helped many families and friends assist disabled individuals with their finances. For additional information and assistance in this area, you can contact the Social Security Administration. Powers of Attorney for Unmarried Couples

For unmarried couples, a durable power of attorney can be critical in determining who has the power to make decisions on behalf of the other partner. Under the new reciprocal beneficiary law in Hawai'i, registered parties have certain health-related rights conferred (such as hospital visitation and health insurance coverage), but there may be instances where family desires conflict with and override the intentions and wishes of a partner. A durable power of attorney can be seen as another written instrument to strengthen the bond between partners. If you have particular concerns, desires, or instructions, ask your attorney to include them in your power of attorney. The clearer your intentions and instructions are, the greater the likelihood that your agent will be able to act on your behalf. Execution formalities are important, so it is usually good practice to have two independent persons witness the execution of the document. If you feel that there is a possibility that your power of attorney will be not be recognized should you become disabled, you should seriously consider making alternative arrangements. Remember, you can nominate a guardian in your power of attorney for consideration of the court.

Joint Accounts While you are getting your personal and business/financial affairs in order, make sure to review what legal titles are reflected on your various properties and financial accounts. Often one spouse or partner holds a bank or checking account or a safedeposit box in his or her name alone. For ease of access, you may want to put the accounts or the safe-deposit box in joint names if you believe you can trust the other person. Joint accounts with rights of survivorship permit any joint owner access to the account.

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As discussed in the section entitled "Multiple-Party Accounts" in the previous chapter, ownership of such an account generally belongs to remaining owners automatically upon the death of one owner with some restrictions. Joint accounts normally should be used as financial planning and management tools only if you want the other person to have access to your money and if this mechanism also corresponds to your estate plan. If your "testamentary" objectives are different, you probably should not use joint accounts to manage your finances during your lifetime. You should also consider the fact that creditors may be able to access a joint account and you could lose some of your money through no fault of your own if the other joint owner has debts. Generally, the bank will not freeze joint accounts if a joint owner dies. Check with your bank to make sure. If an account is not jointly held, problems can arise when the sole owner dies. If the account is small, it may not be necessary or cost-effective to hire a lawyer to take the account through probate. (In chapter 7 we discuss probate and how affidavits for the collection of property of a very small estate may be used. More information about different types of property and ownership follows.)

Types of Property When you think of property, remember that there are several types of property. Real property includes land, buildings, and improvements on land. Personal property includes such movable possessions as money, clothing, cars, jewelry, and so on. Intellectual property includes patents, trademarks, and copyrights. Just as there are different types of property, there are different ways and combinations of ways of holding title to property. You can be the sole owner and own the property as "tenancy in severalty." When you die, this property must be probated to pass to your heirs. You can own property in "joint tenancy with rights of survivorship," where two or more persons own the entire property together. In this type of ownership arrangement, each person has equal rights to share in the use and enjoyment of the entire property during their lifetimes. Upon the death of a joint owner, with certain restrictions previously discussed, his or her rights or

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share pass automatically by law to the surviving joint owner(s) without going through probate. "Tenants by the entirety" is a form of joint ownership of property with rights of survivorship between spouses or reciprocal beneficiaries only Many spouses or reciprocal beneficiaries choose this form of tenancy because it provides protection of property from the creditors of the spouse or reciprocal beneficiary who has incurred a financial obligation. In Hawai'i there is strong public policy to protect property such as a home held by a couple as tenants by the entirety from being seized and sold by creditors to satisfy a debt of one of the spouses or reciprocal beneficiary thereby forcing the family out of their home. The new Hawai'i reciprocal benefits law extends tenancy by the entireties protections to registered reciprocal beneficiaries. Creditors, however, may take legal action if the obligation is a joint one. Another way of holding property is by "tenants in common." This means that two or more persons hold title to property in separate shares that do not necessarily have to be equal. Since there are no rights of survivorship, individual shares may be sold, given away, or distributed during one's life or upon death. Unlike joint tenancy with rights of survivorship or tenants by the entirety, property held as tenants in common does not pass automatically to the survivor but goes to the heirs of the deceased. In this method, each person can pass his or her share to whomever he or she wishes. It is a good idea to have an attorney review the manner in which you actually hold title to your various properties. You may have forgotten why and how title is held. Circumstances may have changed and you may want to change title to fit your estate planning needs.

Retirement Accounts or Pension Plans Check your retirement or pension plans to see if there is a clause providing for or allowing death benefits. Finding out about all the documentation required to qualify beneficiaries for benefits from private pension plans, the Veterans' Administration, and the Social Security Administration is another task that should be accomplished. Upon death or in another emergency, you will

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need to locate the deceased's Social Security number, proof of marriage, birth certificate, dependent children's Social Security numbers and birth certificates, and, if applicable, the Department of Veterans' Affairs records file number. A woman called our office because she was having difficulty receiving Social Security survivor's benefits since she could not locate her marriage certificate. Throughout the years her husband had taken care of all the family's financial and legal matters. The couple was married during World War II by a minister near an Army camp in the South that no longer exists. The witnesses were two soldiers who were subsequently killed in action. Although her husband received a copy of the marriage certificate, he turned it in to the Army in order to receive pay as a married soldier. The minister, who is now deceased, apparently never sent the marriage certificate to the appropriate county or state records office. All Army records pertaining to the husband were sent to the National Records Center, where they were destroyed in a major fire. The woman has been trying to get her benefits for nearly a year without success. Although she loved being taken care of by her husband, she now wishes that she had participated more fully in family matters.

Life Insurance Life insurance is a very common way to provide beneficiaries with money upon the death of the insured. First, make sure the policy has not lapsed. Next, review the ownership and beneficiaries of your insurance policies. As a caution, you should know that the beneficiary does not automatically change to your present spouse if you remarry or reciprocal beneficiary if you should reregister. Your ex-spouse or previous reciprocal beneficiary may be entitled to the insurance proceeds even if you paid the premiums and have not had any contact with him or her since your divorce or termination of reciprocal beneficiary relationship. Also, consult with your insurance agent, lawyer, or accountant as to who should own your life insurance policy. It may make a big difference in planning your estate and avoiding taxes. Most people buy life insurance either to provide financial protection for their dependents or, if it is a "whole life" policy, as an

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investment. Discuss how the proceeds of an insurance policy are to be used. If you are the beneficiary of your spouse's policy, you can use the proceeds to pay bills, especially those incurred by his or her last illnesses. Other options are leaving the proceeds with the insurance company to earn interest or "parking" the proceeds in an account while you take the time to figure out your financial picture.

Using the Equity in Property and Life Insurance A reverse mortgage (which will be discussed in chapter 8) is one of the newest methods through which equity can be utilized during a person's lifetime. You can tap into the equity of your real estate by taking out a loan against its value and repaying the loan over time. Also, for the growing number of terminally ill, the equity they have in their life insurance policies can sometimes be used to help pay bills during their lifetime. Taking an "accelerated benefit" from an insurance policy is an increasingly popular practice. "Living benefits riders" or accelerated benefits riders are available from many companies. The accelerated benefits (usually 50 percent of the policy's face value or $50,000, whichever amount is less) is paid to a policyholder who is certified by a physician to have less than six months to live. The remaining amount of the policy is paid upon death and the annual premium and cash value are reduced. The accelerated benefit is a payment, not a loan, and may have certain tax consequences. Recently Congress enacted legislation to permit tax-free payments through "viatical settlements." Check with your insurance agent for details about your policies. A new industry has sprung up around viatical settlements, whereby a terminally ill policyholder sells his or her policy to a company for 50 percent to 80 percent of its value. The amount paid is determined on the basis of the time a person is expected to live. The shorter the time, the higher the percentage (up to 80 percent) paid. While this may appear to be a rather gruesome business, it is another way for a terminally ill person to get money for his or her last days. Effective January 1,1997, a federal statute allows people with limited life expectancies to receive tax-free payments from their life insurance policies before they die. Previously these viatical payments were taxable.

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Annuities Annuities generally are designed to provide retirement income. Choices made about annuities may have long-term consequences. For example, an income based on a predetermined amount may sound attractive, but most annuities pay a fixed income and do not change to adjust for inflation. Survivors may also benefit from annuities. Like an insurance policy, if the owner dies, proceeds can be designated to go to the owner's beneficiaries. Make sure, of course, that the beneficiary is the person to whom you want to leave the proceeds, since beneficiary designations can reduce the amount you might receive yourself. "Annuitants" usually have the option of choosing a lump sum payment or an annuity for a certain number of years for the beneficiary. Sometimes the beneficiary is also given such an option. You should know that not all annuities involve the designation of a beneficiary. For example, a person may choose to a have guaranteed lifetime income, income for a set number of years, or an income based on his or her life and may or may not make any designation for any beneficiary. If a person chooses not to designate a beneficiary, such a decision is usually irrevocable. You should discuss this with your advisors now. We have had very upset, puzzled widowed persons come into our office to find out why, for example, their deceased spouses' annuity suddenly stopped, only to find out that the deceased spouse had willfully or inadvertently signed up for an annuity based upon his or her own life and did not take into consideration the life of the spouse. The retired spouse may have elected a higher annuity level, hoping to live longer than the actuarial tables the insurance company predicted. Or, accepting a lump sum or a "cash-out" may have seemed more attractive at the time of selection. For example, a lump sum payment may have been used to pay off a mortgage. Sometimes one spouse will not tell another spouse about an election. Sometimes the surviving spouse will forget what type of election was made. For the sake of both partners, the moral of the story is to involve each other in decision-making and to keep each other informed.

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SAMPLE GENERAL DURABLE POWER OF ATTORNEY The following document should not be copied and used "as is." Rather, it should be used as an example to look at different provisions that can be included in a general durable power of attorney. Remember that, generally speaking, nobody must accept a power of attorney and many organizations have their own forms or required formats. For example, the Internal Revenue Service has its own Power of Attorney Form 2848, which contains the myriad of information and authority it requires in designating an agent. It is especially important for you to "tailor" your power of attorney regarding real estate. Not only is this a potentially dangerous area, but a more detailed and formal way of describing the property may be necessary for the document to be legally sufficient. The sample durable power of attorney has a place for the agent and alternate agent to sign. While the presence of the agent is not required at the time of execution of the document, I have found that this can be helpful, provided that they are not exerting any undue influence on the principal. By signing the document they are providing a specimen signature for comparison purposes. Further, they are indicating that they accept the role of agent. The-signature ceremony of the principal and agent can serve to indicate visibly the granting of powers and to portray the seriousness of the document.

DURABLE GENERAL POWER OF ATTORNEY, INCLUDING HEALTH CARE 1. Appointment. My name is Social Security number is -

_-.

, my , and my address is

I appoint , whose address is , as my attorney-in-fact (or "agent"). In the event that (primary agent) is unable or unwilling to act as my attorney-in-fact, I appoint (alternate agent), whose address is

8 0 • The Elder Law Hawai'i Handbook , as substitute to act as my attorney-infact until such time as (primary agent) is able to act. 2. Effectiveness; Duration. Except for the powers regarding health care decisions found under paragraph 3.13.a, this power of attorney is effective immediately and will not be affected by my disability or incapacity. The powers authorized under paragraph 3.13.a are effective only if a licensed physician certifies in writing that I am incapacitated. This power of attorney will continue until revoked or terminated under paragraph 4. The appointment of my attorney-in-fact shall be valid whether or not said attorney-in-fact signs the acceptance provision on this date. 3. Powers. My attorney-in-fact will have broad powers to act on my behalf, including all of the powers of an absolute owner over my assets and liabilities, whether or not located in the State of Hawai'i. These powers will include, without limitation, the power and authority to undertake the following actions for my benefit and on my behalf: 3.1 Real Property. To purchase, take possession of, manage, maintain, alter, lease, sell, convey, exchange, mortgage, release, and encumber real property or any interest in real property; to execute deeds of conveyance; to pay and satisfy all mortgages, encumbrances, taxes, and assessments upon any of my real property; to receive rentals from and the proceeds of sale of any of my real property. 3.2 Personal Property. To purchase, receive, take possession of, lease, sell, assign, endorse, exchange, release, mortgage, and pledge tangible or intangible personal property, including motor vehicles, or any interest in such property; to manage personal property, including but not limited to, moving, storing, selling, donating, or otherwise disposing of said property. 3.3 Financial Accounts; Treasury Bonds. To deal with accounts maintained by me or on my behalf with institutions (including, without limitation, banks, savings and loan associations, credit unions, stock brokerage firms, and securities dealers). This will include, without limitation, the authority to enter into contracts and agreements with institutions, to maintain and close accounts, to open, maintain, and close other accounts, to make deposits, transfers, and withdrawals with respect to all such accounts, and to invest funds in money market accounts or certificates of deposit; to endorse and deposit at any institution checks payable to me, including government checks, and any cash; to purchase and sell United States Treasury Bonds.

Personal and Business/Financial Affairs and Legal Preparations • 81 3.4 Monies Due. To request, demand, recover, collect, endorse, and receive all monies, debts, accounts, gifts, bequests, dividends, annuities, rents, and payments due or payable to me. 3.5 Gifts. To make gifts of cash or property, or the income thereof, in trust or outright, for financial, estate, or tax planning purposes or to continue an established pattern of gift giving or otherwise, to family members, spouse, friends, natural objects of my bounty, and charitable organizations; to create for my benefit or for the benefit of others revocable or irrevocable trusts. This includes the power to transfer assets from or into such trusts and to amend such trusts or existing trusts. 3.6 Claims against Principal. To pay, settle, compromise, or otherwise discharge any and all claims of liability or indebtedness against me and, in doing so, use any of my funds or other assets or use funds or other assets of the attorney-in-fact and obtain reimbursement out of my funds or other assets. 3.7 Legal and Administrative Actions and Proceedings. To participate in any legal or administrative action or proceeding in my name or otherwise. This will include, without limitation, any claims in litigation or arbitration or mediation against or by me, or on my behalf, including without limitation those related to (a) taxes or debts; (b) actions for attachment, execution, eviction, foreclosure, indemnity, and any proceeding for equitable or injunctive relief; (c) claims and any actions pertaining to claims and benefits brought by or against me involving federal, state, or local governmental agencies or private agencies or organizations; and (d) administrative and other legal proceedings in connection with the authority granted in this instrument. 3.8 Written Instruments. To sign, seal, execute, deliver, and acknowledge all written instruments and perform each and every act whatsoever which may be necessary or proper in the exercise of the powers and authority granted to the attorney-in-fact as fully as I could do if personally present. This includes the power to prepare and file applications, claims, requests, or any other document with any governmental or private organization. 3.9 Tax Matters, Returns, and Refunds. To represent me before the federal Internal Revenue Service (IRS) as well as state and local tax agencies; to prepare and file my individual federal, state, and local tax returns and amended tax returns for the taxable years 1996 through 2026; to protest and appeal any assessments or determinations of tax against me and to sign my tax returns and to receive tax refunds on my

8 2 • The Elder Law Hawai'i Handbook behalf. I understand that the 1RS has its own required power of attorney forms and I may attach an executed form to provide necessary information and authority. 3.10 Safe-Deposit Box. To enter any safe-deposit box to which I have a right of access, to include drilling; to remove contents, place documents, jewelry or other assets therein, renew or terminate leases of safe-deposit boxes. 3.11 Disclaimers. To disclaim any interest in any property to which I may otherwise be entitled. 3.12 Contracts, Debts, and Obligations. To enter into any contract of any kind or nature on my behalf and to incur any debt or obligation of any kind or nature on my behalf. 3.13 Health Care. To act on my behalf concerning health care decisions and other health care matters. I intend to grant my agent broad powers relating to my health care. Accordingly, I grant my agent the power to initiate legal proceedings to enforce and carry out health care decisions and other health care matters on my behalf. My agent shall have the following authority and power regarding my health care: a. Health Care Decisions. To make any and all lawful health care decisions that I could make if I were able. My agent shall have the authority to resolve any issues regarding decisions whether my life should be prolonged through surgery, resuscitation, or life-sustaining medicine or procedures or the provision of nutrition or hydration. In making health care decisions on my behalf my agent shall follow my instructions as may be made known by me to my agent, including any instructions contained in a valid "living will," if I have one. If my instructions do not resolve or answer the issues raised by my incapacity, I want my agent to make decisions based on what my agent, in good faith, believes to be what I would have decided. I understand that these health care decision powers are only effective during periods of my incapacity as determined by a licensed physician and that no person can serve as both my treating physician and attorney-in-fact for matters relating to health care decisions. b. Other Health Care Matters. In addition to having the authority to make health care decisions as described in paragraph 3.13.a., I also grant my agent the power to authorize my admission to or discharge from any medical, nursing, residential, outpatient, or home health care service, program, or facility and to arrange, contract for,

Personal and Business/Financial Affairs and Legal Preparations • 8 3 and pay for consultation, diagnosis, treatment, or services as may be required for my care, without my agent incurring any personal financial liability. To the extent permitted by law, I grant my agent the power to make anatomical gifts, including organ donations, to authorize an autopsy, and to direct the disposition of my remains. Further, I grant my agent access to my medical records, authority to release information about me, authority to communicate with health care providers and insurers, authority to sign necessary forms and documents on my behalf, and permission to visit me in any setting. I grant my agent the authority to make application for public or private benefits on my behalf to pay for my health care. This power includes the authority to sign necessary applications of any private, state, or federal agency or program, including, but not limited to Medicare, Medicaid, and Hawaii Quest benefits and the authority to have access to information regarding my income, assets, banking, and financial records in order to make such applications. 3.14 As to protective proceedings for my person or estate, if protective proceedings are hereafter commenced, I nominate my above named attorney-in-fact as conservator, guardian of my estate, or guardian of my person for consideration by the court. 4. Termination. This power of attorney will be terminated (a) by oral or written notice to my attorney-in-fact by me; (b) by written notice to my attorney-in-fact or the guardian of my property after court approval of such termination; or (c) by my death. 5. Accounting. Upon my request or upon the request of a guardian of my property or the personal representative of my estate, my attorney-infact will account for all actions taken by my attorney-in-fact for me or on my behalf. 6. Intent; Inducement. It is my intention to give my attorney-in-fact the broadest possible power and authority to do everything necessary or convenient in exercising any of the powers granted in this instrument. The enumeration of specific powers in this instrument is not intended to limit or restrict the general powers granted to my attorney-in-fact. However, such powers are to be used for my benefit and on my behalf and are to be exercised in a fiduciary capacity. This power of attorney is meant to give my attorney-in-fact powers to be used as necessary for my personal benefit and to provide for my care and support and to carry out instructions I may give my attorney-in-fact. To induce any third party to act under this Durable General Power of

8 4 • The Elder Law Hawai'i Handbook Attorney, I, for myself and for my heirs, executors, legal representatives, and assigns, hereby agree to indemnify and hold harmless any such third party from and against any and all claims that may arise against such third party by reason of such third party having relied upon the provisions of this instrument. 7. Applicable Law. The laws of the State of Hawai'i will govern this power of attorney. 8. Severability. If any provision of this document should be determined not to be valid, all other provisions shall remain valid.

(Principal)

Dated

, 19

.

STATEMENT OF WITNESSES I am at least 18 years of age and not related to the principal by blood, marriage, or adoption; and not currently the attending physician, an employee of the attending physician, or an employee of the health care facility in which the principal is a patient. The principal is personally known to me and I believe the principal to be of sound mind. WITNESSES: Address Address SPECIMEN SIGNATURE AND ACCEPTANCE OF APPOINTMENT I, the attorney-in-fact (agent) named above, accept the appointment under this durable power of attorney. The principal is personally known to me and I believe that principal to be of sound mind. Attorney-in-Fact I, the alternate attorney-in-fact (alternate agent) accept the appointment under this durable power of attorney during any period of time

Personal and Business/Financial Affairs and Legal Preparations • 8 5 when the named attorney-in-fact is unable or unwilling to act. The principal is personally known to me and I believe that principal to be of sound mind.

Alternate Attorney-in-Fact STATE OF HAWAI'I

) ) )

SS. C O U NTY OF On this day of , 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he or she executed the same as his or her free act and deed. Also before me appeared and witnesses, who witnessed the execution of the foregoing instrument and who signed as agent and who signed as alternate agent.

Notary Public, State of Hawai'i My Commission Expires:

4 Medicai Treatment and Making Health Care Decisions in Advance

A well-respected doctor who had helped many patients and families cope with the devastation of terminal illness was himself struck with a serious brain disease. The condition progressed very rapidly and, unfortunately, caused severe changes in his personality and his ability to think and communicate. His family was torn apart over what to do since he had never made any advance medical treatment decisions declaration or appointed anybody to make decisions for him. Ironically, he had always been the one to provide guidance and help to others. He eventually died, surrounded by family conflict, guilt, and anger, which he had devoted his life to helping other people avoid. There are some lessons to be learned from this story. First, good lifetime and estate planning can put you in control of your health as well as your wealth. If the doctor had heeded his own advice, he would probably have made a living will and a durable power of attorney for health care. These documents would have kept him in control of what course of life-sustaining medical treatment he may or may not have wanted and would have prevented dissension among his family members. Second, because he was struck with a serious brain disease, his ability to think and communicate was greatly compromised. He could not give informed consent to accept or refuse medical treatment. 87

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Don't procrastinate too long in taking care of planning for your health care. While you are able to make and communicate decisions, act to put the legal documents in place. Don't wait until there is a crisis that forces you to make quick decisions. Both federal and state laws and policies require that health care providers and facilities discuss a wide range of health care matters with their patients when they are admitted to a health care facility. They may ask their patients about such matters as advance directives for medical treatment decisions, do not resuscitate (DNR) orders, organ donations, and even autopsies. These discussions are intended to inform patients about their health care choices and rights. By providing patients with such information, they can better exercise their rights to self-determination and autonomy. While these laws are well-intentioned, the time to think about these matters is before you face hospitalization, when you are not anxious or stressed or perhaps incapable of thinking clearly. You can be in better control of your medical treatment when you have time to think about it in advance. Moreover, you may not feel as coerced to sign a document if you have had time to carefully consider it.

Informed Consent An adult has the constitutional right to accept or refuse medical treatment. (A court order may be necessary to perform certain medical procedures on minors whose religious beliefs conflict with medical practice.) With certain exceptions and limitations, modern medical practice, supported by standards adopted by state law, requires that a health care provider obtain informed consent prior to providing medical treatment. The purpose of informed consent standards is to provide a patient with sufficient information to allow a "reasonable person" to make a "prudent" choice about his or her treatment. Truly informed consent means that a person has decisional capability and understands the information, that the consent is voluntary and free from coercion, and that adequate information is disclosed. As the concept of informed consent evolves, issues of consent and capacity to consent continue to interface.

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The State of Hawai'i Board of Medical Examiners establishes standards for health care providers in the state to follow in giving information to a patient, or to a patient's guardian if the patient is not competent, to ensure that the patient's consent to treatment is an informed one. These standards are designed to reasonably inform a patient, or a patient's guardian, of: 1. the condition being treated 2. the nature and character of the proposed treatment or surgical procedure 3. the anticipated results 4. the recognized possible alternative forms of treatment, including nontreatment Medical standards do not require informed consent from a patient or a patient's guardian "when emergency treatment or emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health." Failure to provide and obtain informed consent can have serious consequences and may be the basis for legal action against a health care provider. Following a recent court case pertaining to informed consent, Hawai'i adopted a patient-oriented standard that affects a physician's duty to disclose risk information prior to treatment. A patient-oriented standard of informed consent requires the physician to provide the necessary objective information to the patient so that, as a reasonable person, the patient can make informed and intelligent decisions regarding proposed medical treatment.

Patient Self-Determination Act The Patient Self-Determination Act (effective December 1,1991) requires that all states and most health care facilities comply with Medicare and Medicaid rules regarding patients' right to control their health care treatment. It requires organizations that receive Medicare or Medicaid payments—such as hospitals, nursing facilities, home health agencies, hospices, and prepaid health care organizations—to do five things:

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1. Provide written information to patients at the time of admission or initial provision of services concerning patients' rights under state law to make decisions about what medical care they want or do not want, including patients' right to accept or refuse life-sustaining or life-prolonging medical treatment. 2. Maintain written policies and procedures regarding advance directives, and provide written information to patients about what those policies are. 3. Document in the patients' medical records whether they have executed advance directives. 4. Ensure compliance with state law at each health care organization that is subject to the new federal law. 5. Provide (individually or with others) education to the staff and community concerning issues surrounding advance directives. The intent of the federal law is to help individuals understand they have strong rights regarding their medical treatment and to help them exercise those rights if they so desire. It was hoped that this assistance would help avoid problems and litigation over the initiation or continuation of unwanted life-prolonging medical treatment. The federal law also forbids a health care organization from conditioning the provision of care or otherwise discriminating against patients based on whether or not advance directives have been executed. Finally, the federal law requires each state to develop a written description of state law regarding advance directives. This description is to be distributed by providers to all adult patients upon admission.

Advance Medical Directives The term "advance medical directive" (AMD), in the broadest sense, applies to all directives, instructions, or even desires that a person may communicate in writing, orally, or through some other fashion concerning decisions about medical treatment and health issues relating to one's body. Accordingly, such directions as declining cardiopulmonary resuscitation in advance, autho-

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rizing an autopsy, or donating organs may be considered by some to be AMDs. In a stricter sense, AMDs can be defined as written documents directing the consent or nonconsent, application, withdrawal or withholding of medical treatment, or the appointment of a surrogate decision-maker to make health care decisions. In this sense, not only can they be used to direct what type of treatment a person may not want; they can also be used to provide protection for those who may feel that they are in danger of not receiving adequate care. While AMDs are generally used in the context of making endof-life decisions, the laws of the state of Hawai'i cover a broad range of advance directives. One law even recognizes the right of an individual suffering from a psychotic condition to make a written declaration while he or she is in a state of remission. Through this type of AMD, the individual can instruct his or her physician to provide medical treatment, including the administration of psychotropic drugs, if the individual has not continued to take his or her medication and the treatment would help return him or her to a state of remission. Although written advance directives concerning life-sustaining medical treatment are encouraged and preferred under Hawai'i law, they are not required. Verbal statements between a patient and a physician, or even between a patient and his or her friends or relatives, may be considered by a physician in deciding whether to withdraw or withhold life-sustaining medical treatment. Virtually every state has authorized some form of advance medical directive. Every state law is different, and it is sometimes questionable whether an AMD executed in one jurisdiction will be recognized in another jurisdiction. Formats used in Hawai'i are generally considered adequate in most states, but health care facilities may still be reluctant to recognize out-ofstate documents. While there is some movement toward creating uniformity among the states, it is best to check out the policies in another state ahead of time. For example, a person who is traveling to another state may be concerned about the "portability" of his or her AMD. Some homework can be accomplished by calling a family member or friend to find out from a health care

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provider or elder law attorney about AMD guidelines in that jurisdiction. One version of an AMD which, by federal law, must be recognized by all states is the military advance medical directive when it is properly executed in accordance with military legal assistance guidelines. For individuals entitled to the services of military legal assistance programs, the military AMD could prove to be most beneficial, no matter where in the United States a person travels.

Extended Values History In order to make a person's desires and choices about life-anddeath issues known, an "extended values history," may be accomplished. This is usually a document that assists you in thinking about and writing down what is important to you about your life and your health and what your attitudes are toward your living environment. Such items as your overall attitude toward life and health, the role your family and friends play in your life, your thoughts about independence and self-sufficiency, your religious background and beliefs, your current health status, your thoughts about illness, dying, and death, your thoughts about pain control, your thoughts about life-sustaining medical treatment in the event you are no longer able to communicate, your legal preparations for death, your trusted advisors, your finances, and your thoughts under what circumstances and where you would prefer to die are often included in this type of document. The document can be in any format you choose, and you can start by addressing the topics cited above. You can also contact organizations serving the elderly, such as the American Association of Retired Persons, for their formats. This values history can be useful in making such AMDs as a living will and durable power of attorney for health care.

Do Not Resuscitate (DNR) Codes and Physician Orders for Life-Sustaining Medical Treatment (POLSMT) Orders DNR codes are orders placed by a physician with the patient's (or patient's surrogate's) consent in the patient's treatment chart.

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When a patient suffers cardiac or respiratory arrest in a hospital or other health care facility, the normal action taken is called a "code." It is important to know that, in such an emergency, the patient will be resuscitated unless there is a written DNR order in the medical record. This order is sometimes called a "Do Not Attempt to Resuscitate" or "No Cardiopulmonary Resuscitation [CPR]" order. The DNR order is only an order to forgo the otherwise automatic initiation of CPR, and it does not alter other treatment decisions. CPR can include such emergency medical interventions as artificial breathing, chest compressions, cardiac defibrillation (using electric shocks), and certain drugs. In the past, in the absence of a DNR code, a patient was automatically considered to be a "full code" and all means possible would be used to resuscitate the patient. There is a new trend in modern medical practice to recognize and respect a patient's right to refuse medical treatment and that the absence of a written DNR order does not necessarily mean that all measures to keep a person alive should be taken under all circumstances. A patient's decision to refuse all or certain forms of CPR may be expressed in advance in writing and this may serve as the basis for the DNR order. The decision to refuse CPR may also be made orally by a mentally competent patient to the attending physician. This can also serve as the basis for the DNR order. DNR codes are often written if it is felt that future resuscitation efforts would be futile. Ethics committees of health care facilities are often asked to provide consultation on these cases. Resuscitation codes can be tailored to fit a particular patient's wishes. It does not have to be "all or nothing." Patients and families should also know that there are comfort measures that can be taken in the event a person suffers a cardiac or pulmonary arrest and a DNR code is in place. Since DNRs are physician's orders and have evolved in the clinical practice of medicine, they often are seen to have more in common with other medical orders, such as medication, than with such legal documents as the living will or health care power of attorney (which will be discussed later in this chapter). DNRs do, however, play an important role with legal documents in making advance planning decisions. In some facilities POLSMTs are written along with the traditional code orders. These POLSMT orders, which may be called

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by various names, are written to take into account a patient's desires and needs whether in a hospital or long-term care facility. They take into consideration such matters as CPR, pain control, conditions under which a patient should be transported to a hospital for treatment, tube feeding, and even specific topics such as the use of antibiotics. For example, a resident of a nursing facility in her eighties is in the advanced stages of Alzheimer's disease. Because she is losing weight, tube feeding has been initiated. She suffers from periodic internal bleeding but is not a good candidate for surgery; instead, she receives transfusions in a hospital as needed. She weighs less than eighty pounds and now has pneumonia. How should she be treated, and would treatment be considered futile? There is a good chance that she would survive the pneumonia if she is transported to the hospital and given antibiotics. Nobody knows what she would have wanted had she remained able to communicate her wishes. "Cross-site" resuscitation codes and POLSMT instructions make treatment plans more cohesive, whether a person is in a hospital, nursing facility, hospice, or community-based treatment program. Although resuscitation codes and POLSMT orders are related to living wills and durable powers of attorney for health care (which will be discussed later in this chapter), the circumstances under which they are carried out may be quite different. For example, a living will goes into effect upon certification by a physician that the patient has developed a terminal condition or a permanent loss of the ability to communicate concerning medical treatment decisions with no reasonable chance of regaining this ability. At that point the doctor can carry out written instructions of the patient, including withdrawal of lifesustaining medical treatment. Through a DNR/POLSMT order, treatment, including life-sustaining treatment, may be withheld or withdrawn even if it is not determined that a patient has a terminal condition or a permanent loss of the ability to communicate. Further, the DNR/POLSMT order does not have the same detailed formal witness and notarization requirements of a living will. The sensitive subject of resuscitation codes and emergency and life-sustaining treatment in a hospital or nursing home

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should be addressed early on, especially in the case of a person with a serious illness who may likely have a cardiac or pulmonary arrest or lose consciousness. Study and consider these sensitive matters, including different options for your care and treatment, so that you will be prepared to discuss your philosophy about medical care with your doctor and family even before you are admitted to a health care facility. Living Wills A good way to make your desires concerning future life-sustaining medical treatment known is to make a living will. Through a living will, you can instruct your doctor to provide, continue, withhold, or withdraw life-sustaining procedures if you suffer a permanent loss of the ability to communicate concerning medical treatment decisions and there is little chance of your recovery. There is no requirement that you be "terminal." Permanent loss of the ability to communicate concerning medical treatment decisions means a person is diagnosed by a physician as: • being in a persistent vegetative state with no reasonable expectation of regaining consciousness • being in a deep coma with no reasonable expectation of regaining consciousness • having a permanent loss of the ability to participate in medical treatment decisions, secondary to severe neurological or brain damage, with no reasonable expectation of regaining this capacity You should make certain that your desires and directions are clearly understood. Do not focus all your attention on just signing a form. In addition to a making a living will, you can talk with your doctor, family, and friends about your medical treatment. You can write an explanatory letter and place it in your medical file. You can execute a durable power of attorney for health care to grant somebody the authority to carry out your wishes. To be safe, you can do a combination of these things. A sample living will that is similar to the one included in the Hawai'i living will law in 1997 is included at the end of this

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chapter. The definition of "permanent loss of the ability to communicate concerning medical treatment decisions," as explained above, has been added to the form for clarity. You may use this sample form, copy it, change it to add more individualized instructions, or use an entirely different format. Note, however, that the legislature has stated that in order to be enforceable, all living wills executed after July 1,1991, must minimally include a checklist through which the declarant indicates whether or not he or she wants tube feeding to be provided. If the patient does not make a selection or if the document does not include a checklist, it is presumed that tube or other artificial feeding or provision of fluids by a tube are requested to prolong the declarant's life. To execute a living will in Hawai'i, you and two witnesses must sign the document. The witnesses must be at least eighteen years old and not be related to you by blood, marriage, or adoption. The witnesses cannot be the attending physician, an employee of the attending physician, or an employee of the health care facility in which the person is a patient. All signatures must be notarized at the same time. You should give the living will to the health care providers responsible for your treatment, such as your doctor or health care facility. To activate the living will, your attending physician must certify and sign a document stating that you are in the condition stipulated in your declaration and that there is little chance of your recovery. If you have someone you feel you can trust, you may wish to designate a "proxy" (or agent or attorney-in-fact) in your living will to carry out or enforce the directives you have made in your living will. This could also be accomplished in a separate document, namely, the durable power of attorney for health care. If you have an old living will (one without a checklist concerning tube feeding) it is recommended that you make a new one. If nothing else, at least add more specific instructions to your old living will about whether you want artificial nutrition and hydration, respirators, or other kinds of medical treatment. You can also write a letter to your doctor explaining any needs and concerns that may not have been made clear in your old living will. Even if you do not have witnesses available, date and sign the declaration or letter, give a copy to your doctor, and

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have a copy placed in your medical file. In an emergency, tell competent individuals your desires and make sure that this information is passed on to your physician. In the absence of a living will, ordinary standards of current medical practice will be followed. Although living wills are desirable, nothing in the law requires a living will for lifesustaining procedures to be provided, continued, withheld, or withdrawn. If there is no living will, the doctor may rely on unambiguous statements that you may have made to him or her or to other people about whether you would want life-sustaining procedures to be applied, withdrawn, or withheld. The advantage of a properly executed living will is that, under Hawai'i law, if you validly execute a living will and all the conditions are met to make it go into effect, the doctor must follow your directive or arrange to transfer you to another doctor who will carry out your wishes. Doctors who fail to carry out their responsibility to their patients can be sanctioned. Be careful about the living will forms you sign. An adult child of an older person called about her mother who was in a nursing home. The mother was still able to feed herself—at least in the morning—and she was still able to talk to her children, other family members, and friends. She was being denied intravenous fluids because she had signed a living will that stated that she did not want treatment if she "suffered an irreversible mental or physical condition which seriously disabled" her. The daughter was shocked that her mother had signed a document that did not require that she be in a terminal condition or even in a condition where she had permanently lost her ability to communicate before life-sustaining medical treatment was withheld. As a matter of fact, the mother was also shocked and admitted that she did not really understand the significance of the document that was presented to her since she could not read or even understand English very well. The mother made a new living will (in two languages) that included clear instructions on when the living will would go into effect and named her daughter as a "proxy" to carry out her decisions and to protect her. Often life-and-death decisions seem to be made on the basis of what form is being "pushed" at a particular institution, club, or

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gathering. Living wills should not always be considered to be a "pull-the-plug" document. Tailor them to your needs and desires. Be careful what you sign; be sure to get answers to your questions before you sign anything. Also, read the sections in this chapter about physician-assisted dying, physician-assisted suicide, and euthanasia so that you will have a better idea about issues concerning death and dying in modern times. Sample living will forms are very general and can be ambiguous, especially in their applicability to particular diseases or treatments. Even if the patient has executed a living will, doctors may be reluctant to act if they have no clear guide to a person's desires. In response to this criticism, two Harvard physicians created a detailed advanced medical directive that allows individuals to make specific choices about a number of procedures under various circumstances. Even though it is not described in the law, you can use the "Harvard" type of chart as long as the format complies with the technicalities of Hawaii's living will statute. This type of chart can also be used as a supplement by attaching a copy to or incorporating it in your living will. Another way of making your living will understood is to use it as a continuation point (or, perhaps, a starting point) for discussions about your feelings concerning medical treatment, illness, and death. An extended values history can be a very useful document. Remember to include a discussion about DNR and POLSMT orders. The more information your family, friends, and health care providers have about your desires, the better chance that your wishes will be carried out. Recommendations for legislation to make executions of living wills easier and to include such matters as DNR desires have been proposed. Certification of Conditions Specified in Living Will

If you make a living will, how will it be carried out? An attending physician who has been notified of the existence of a living will declaration must make all reasonable efforts to obtain the notarized declaration and then ascertain whether the declarant's condition corresponds to the directions on the declaration. If the patient's condition corresponds to these directions, then the doctor makes a written certification of the patient's condition. The

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certificate then becomes part of the declarant's medical record. After that, the doctor will follow the directions contained in the living will or make provisions to transfer the patient to another physician to carry out the patient's instructions. A sample of the format used for the certification is included at the end of this chapter. All inpatient health care facilities are required to develop a system to visibly identify when a patient's chart contains a living will declaration. Comfort Care Only Directives Living wills are not generally used to make emergency resuscitation decisions, although they may be used as the basis to withhold CPR attempts in cases where a person has been certified to be in a condition as stated in his or her living will. Traditionally, DNR codes only applied in situations where a person was a patient in a health care facility. However, a new law effective July 1, 1995, allows a terminally ill person in the community to state in advance that he or she does not want to be resuscitated in an emergency if he or she meets the following requirements: 1. Has been certified in a written "comfort care only" document by the person's physician to be a terminally ill patient of that physician. 2. Has certified in the same written "comfort care only" document that the person who directs emergency medical services personnel, first responder personnel, and health care providers has been informed not to administer chest compression, rescue breathing, electric shock, medication, or all of these, given to restart the heart if the person's breathing or heart stops, and directs that the person is to receive care for comfort only, including oxygen, airway suctioning, splinting of fractures, pain medicine, and other measures required for comfort. 3. Has a physician-prescribed "comfort care only" identifying bracelet or necklace. The written document containing both certifications must be signed by the patient with the terminal condition, by the patient's physician, and by one other adult who knows the patient.

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A proposal to modify the requirement that a patient have a terminal condition has been suggested for legislation.

Durable Power of Attorney for Health Care In addition to the living will, the durable power of attorney for health care (also called a medical power of attorney, health care proxy, or medical proxy) is a document you should consider having for your future health care decisions. Delegating the authority to carry out or to make health care decisions to a family member or friend is becoming a common method of planning for the future. A Hawai'i law enacted in 1992 makes changes to Hawai'i's durable power of attorney statute and recognizes the right of an attorney-in-fact or agent to make decisions about another person's health care. Through a durable power of attorney for health care, you can authorize another person (an "attorneyin-fact," "agent," or "proxy") to carry out or to make health care decisions for you in the event you are no longer able to communicate decisions yourself. As with the living will, you should be clear as to your intentions about life-and-death issues when you execute a durable power of attorney for health care. You should grant a person power over your life only if you understand the consequences and finality of your agent's actions, make your intentions concerning life-and-death decisions known, and feel you can trust your agent. As previously indicated, a durable power of attorney permits a power of attorney to be effective even after an individual becomes mentally incapacitated. The agent or proxy could, thus, carry out specific directives or make health care decisions in the absence of any such specific directives when the person is no longer able to communicate. If properly drafted, the durable power of attorney for health care can allow your attorney-in-fact to make health care decisions, to talk to your doctor, to have access to your medical records, to visit you, and, if necessary, to enforce your decisions through court action. In addition, this document can be used as clear evidence of your personal health care treatment desires. Most doctors and health care facilities want to know about a person's values and concerns and try to support an

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individual's preferences and desires, including his or her preferences in appointing an agent or proxy for health care matters. There are several basic requirements for to creating a valid durable power of attorney for health care in Hawai'i. In order to be valid, the document: 1. Must be in writing and dated. 2. Must be signed by the principal, or by another person in the principal's presence and at the principal's expressed direction. 3. Must be signed in the presence of two or more witnesses who a. Are at least eighteen years of age. b. Are not related to the principal by blood, marriage, or adoption. c. Are not, at the time that the durable power of attorney is executed, attending physicians, employees of the attending physician, or employees of a health care facility in which the principal is a patient. 4. Must have all signatures notarized at the same time. Under the durable power of attorney for health care law, the agent's authority must be explicitly stated if he or she is to be authorized to decide that the principal's life should not be prolonged through surgery, resuscitation, life-sustaining medicine or procedures, or the provision of nutrition or hydration. Furthermore, this document is effective only during the period of incapacity of the principal as determined by a licensed physician. Finally, no person can serve as both the treating physician and attorney-in-fact for any principal in matters relating to health care decisions. A durable power of attorney for health care decisions that was executed prior to the effective date of the new law (July 1992) and substantially complies with the requirements of the new law will be considered valid provided that the powers relating to the health care decisions granted in the power of attorney have not been previously revoked by the principal or otherwise terminated. As with other powers of attorney intended to be used in the event of disability, make sure that you consider designating

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alternate attorneys-in-fact in case your first choice is unwilling or unable to act on your behalf. What happens when an appointed health care agent refuses to comply with the known desires of a principal, or the agent is acting contrary to expressed directions? First, you should remember that agents do not have to take on any responsibility just because they are appointed as agents. However, if they do act under the authority of a power of attorney, they are supposed to act on your behalf. Next, try to ensure that your agent is trustworthy and understands your directions. To avoid difficulty, you may wish to make your intentions very clear. If you make a living will, you may wish to tell your doctor that your desires as expressed in your living will are to be followed and that you have instructed your agent accordingly. You may even write an extended values history and request that friends or family oversee the actions of your agent to ensure that your desires are carried out. Finally, you can let family and friends know that they can call the Adult Protective Services to file a report if they feel you are being abused by your agent. As will be discussed in the chapter on elder abuse, the Department of Human Services can investigate alleged incidents of abuse of a dependent adult. Abuse of a power of attorney can be a basis to determine that a dependent adult is being abused. Also, remember that you always have the right to revoke the authority of your agent by notifying your agent or your attending physician, hospital, or other health care provider. Make certain that your health care power of attorney is placed in your medical file or files, if you have more than one. This is your responsibility. In case of an emergency that requires a decision concerning your health care, make sure that you keep a copy where it is immediately available to your agent and alternate agents. You can give each of them and your doctor a copy of this document. Health care powers of attorney work well with living wills. For many, a prudent course of action would seem to be to make both a living will and a durable power of attorney for health care. The health care powers can be included in a durable gen-

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eral power of attorney or be a separate document. Consult your doctor and your attorney to decide which suits your needs better. (We have included samples of these documents at the end of this chapter.) Remember, it is your responsibility to ensure that copies of these documents are placed in your medical file.

Health Care Powers for Unmarried Couples or Partners The durable power of attorney for health care is highly recommended for unmarried couples or partners who wish to give each other power to make medical treatment decisions. This type of document may provide the authority necessary to make health care decisions and gain access to information about the partner's care and condition—even, perhaps, the right to visit.

Access to Medical Records Generally speaking, under state and federal law, all individuals in Hawai'i have the right to have access to their medical records, whether they are being held by a physician licensed in the state of Hawai'i, a federal doctor, a private, state, or federal hospital, or other health care facility. There are exceptions, of course. For instance, the laws do not apply to nursing institutions. Further, if a doctor feels that releasing the medical records would be detrimental to the health of the patient, he or she does not have to release them. Under such circumstances, the patient may need an attorney's help in obtaining the records. Of course, a person asking for copies of his or her medical records may have to pay reasonable expenses incurred by the health care provider in getting these copies.

Donation of Organs and Bodies Anatomical gifts, including organ donations, can save lives, make the lives of others easier, and provide valuable assistance to medical science. You may have personal, religious, or philosophical reasons why you may wish or not wish to make a gift of your body or certain parts of it. You may also wish to instruct any health care agent about your desires. Some individuals will

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only agree to donate an organ if the cost of donation will be borne by some other party besides themselves or their families. Further, a donor may amend or revoke an anatomical gift in writing or orally. The Uniform Anatomical Gift Act permits any individual of sound mind who is eighteen years of age to give all or any part of his or her body for medical or dental education, research, advancement of medical science or dental science, therapy, or transplantation. The gift becomes effective upon death without waiting for probate. Evidence of an intent to donate organs can be made by a will or by a document other than a will, such as a donor card or document imprinted on a driver's license. The potential donor, the next of kin, or another person in accordance with the statute can make the gift. The University of Hawai'i medical school has a program through which it accepts bodies but it does exercise the right to refuse bodies, for example, when it does not need any more or when the body is not in appropriate condition for the school's purposes or if the body is not located on Oahu. The medical school has its own forms and procedures for accepting bodies, so it is best to contact that school if you are interested. Other medical schools, as well as research institutions and doctors, may also have procedures for accepting bodies. Today, more organs and tissues from older persons are being used than ever before. However, according to some medical opinions, suitable organ donors are usually under age seventyfive for solid organs such as kidneys, livers, hearts, pancreases, and small bowels, and under seventy for transplantable tissues such as skin, long bones, heart valves, and veins. There is no age limit for eye donation. Solid organ donors must meet the criteria for brain death (death is discussed later in this chapter). Often time is of the essence in "harvesting" most organs and tissues— sometimes within hours of death. The criteria for acceptance are dependent on the need for organs and the condition of the part to be donated. Further, while patients with infections, sepsis, or malignancies are not usually good donor candidates, some parts may still be usable.

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Autopsies Autopsies can be authorized under the provisions of the Uniform Anatomical Gift Act. In addition, under other provisions of Hawai'i law, "if, in the opinion of the coroner, or of the coroner's physician, or of the prosecuting attorney, or of the chief of police (in the City and County of Honolulu), an autopsy of the remains of any human body appearing to have come to death under circumstances that would indicate that the death was a result of violence, or as the result of any accident, or by suicide, or suddenly when in apparent health, or when unattended by a physician, or in prison, or in a suspicious or unusual manner, or within twenty-four hours after admission to a hospital or institution, or if it is necessary in the interest of the public safety or welfare, that person shall cause to have performed such an autopsy." The term "coroner" has been used for many years for the official appointed to determine the causes and circumstances surrounding a death. The term "medical examiner" is used in many locations for a licensed physician who routinely performs autopsies to determine the causes and circumstances surrounding a death. Autopsies can be used to clarify puzzling medical cases, to provide useful information to survivors (including reassurance about negative findings), to define environmental and occupational hazards, to collect statistical data, to provide information for court or concerning a crime, or to enhance medical education such as the study of Alzheimer's disease. Finally, it is a very emotional subject, but experts agree that if a death in a hospital or other health care facility seems suspicious, you should seek the assistance of the medical examiner's or coroner's office rather than automatically agreeing to have the autopsy performed by the health care facility staff. You also can instruct your family and friends about this procedure in the event they have suspicions about your death.

Death When is a person considered dead? Modern science has the ability to keep a body functioning even in the absence of evidence of

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brain activity. Issues regarding the use of life support and the cost of keeping bodies artificially functioning, the ability to "harvest" and use live organs, and even the dilemma families and friends face in "letting go" of a person who seems to be "alive" are often difficult to resolve without an understanding of modern concepts of death. Under Hawai'i law, "a person is considered dead if, in the announced opinion of a physician, based on ordinary standards of current medical practice, the person has experienced irreversible cessation of spontaneous respiratory and circulatory functions. Death will have occurred at the time when the irreversible cessation of the functions first coincided. In the event that artificial means of support preclude such a determination, a person is considered dead when the person has experienced irreversible cessation of all functions of the entire brain, including the brain stem. This requires the opinions of an attending physician and a consulting physician." The determination of death involves technical considerations. For centuries doctors have been pronouncing people dead on the basis of "heart-lung death." This basically means that a doctor will check the temperature of the body, will listen for breathing, will listen for heart beats, and will check the pupils of the eyes for response to light and the corneal reflex (i.e., blinking of the eyes). The "whole brain death" definition is utilized when there is a "neurological event" adequate to produce brain death and, upon examination, there is an absence of brain stem functioning—the patient is in a profound coma (eyes closed; unconscious), there is no eye movement or pupillary response, there is no corneal reflex, there is no cough or gag reflex, and there is no spontaneous respiratory attempts when the patient is removed from a ventilator for a certain period of time. Upon a diagnosis of possible brain death, laboratory confirmation may be made by tests showing that there is no cerebral blood flow and that there is no significant electrical activity in the brain shown by an electroencephalogram (EEG). By itself, absence of electrical activity in the brain is not sufficient to determine brain death since there may be certain chemical or physical reasons for such an absence, including the presence of certain drugs.

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The patient who has suffered brain death may not appear to be "dead," and the feelings of family members and other loved ones need to be taken into consideration by medical professionals. Occasionally, for example, a ventilator will be left on for a short period after brain death has been certified in order to prepare the family for the death. Finances can also enter the equation, since insurers will normally not pay to sustain the body of a person who has been declared brain dead for any extended period of time. As mentioned before, the new Uniform Probate Code also has rules relating to the determination of death and the status of missing persons, including the type of evidence that must be provided. In addition to official death certificates, for example, the fact of death may be established by "clear and convincing evidence," including "circumstantial evidence" of a person who has been absent for a continuous period of five years, during which time he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry. Under these circumstances the person may be presumed to be dead and the court may so declare. (A discussion of the dying process itself will be presented in chapter 7, "Surviving Death and Dying.")

Suicide While there is no law prohibiting suicide, there are prohibitions against individuals assisting others to commit suicide, especially physicians. (Note that the current Hawai'i living will law specifically states that execution of a living will or withholding or withdrawing life-sustaining procedures, if done in accordance with the medical treatment decision provisions of law, does not constitute suicide.) The law often treats the subject of suicide in the context of mental illness. For example, one Hawai'i law provides that if a person is believed to be mentally ill or suffering from substance abuse and is imminently dangerous to self or others he or she can be subjected to involuntary emergency examination and hospitalization. Sometimes the distinctions between not wanting to live and actively killing oneself are not

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very clear. Much has been written about "rational suicide" and maintaining control over one's life even in the face of devastating physical illness or mental deterioration. Psychiatrists often point out that, with treatment, most individuals can learn to deal with their feelings of depression and hopelessness. Further, with appropriate modern medical treatment, most pain can be controlled. Individuals should not hesitate to consult professionals for advice and assistance since they really do care and can be most helpful.

Physician-Assisted Dying and Physician-Assisted Suicide Many people would want their physician to assist them in their dying, but most people will not consider requesting a physician to assist them to commit suicide. For many, assisted suicide goes far beyond requesting that medical treatment be withheld or withdrawn and beyond requesting that pain medications be provided even if the administration of medication should have the "double effect" of hastening death. Others, in contrast, feel they have a right to request physician-assisted suicide. This subject brings up difficult issues of euthanasia, mercy killing, and, in general, the "right to die." There have been a series of court cases involving these issues, including cases presented to the Supreme Court of the United States. (You will find an overview of "Euthanasia, the 'Slippery Slope' and the Courts" in an appendix.) Appeals courts on the East Coast and the West Coast of the United States have declared that state laws prohibiting physician-assisted suicide are unconstitutional. The Supreme Court took up this matter in 1997. The Supreme Court Decisions on Physician-Assisted Suicide The Supreme Court unanimously upheld state laws in New York and Washington that forbid physicians to help the terminally ill end their lives. The Justices ruled that the Constitution of the United States does not guarantee Americans the right to commit suicide with the help of a physician, but they basically left the issue to state legislatures to decide.

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While the Court acknowledged that the terminally ill can endure great agony, they placed a greater emphasis on the American tradition of condemning suicide and valuing human life. Ruling in the two separate cases, the Court stressed that the states have an interest in protecting society's most vulnerable against potential abuses and warned that assisted suicide could undermine the trust of the doctor-patient relationship by blurring the line between healing and harming. In the Washington State case, the Supreme Court noted that "the state's assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and the healthy." In the New York case, the Supreme Court found that the state's recognizing and acting on the distinctions between refusing lifesaving medical treatment and assisted suicide—including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward euthanasia—are valid and important public interests. The Supreme Court decision made it clear, however, that dying patients can receive palliative care to obtain relief from their suffering, even when doing so would hasten their deaths. The Supreme Court also made it clear that the decision also permits the debate about the morality, legality, and practicality of physician assisted-suicide to continue. The Supreme Court decisions mean that Americans will have to resolve many of the issues of physician-assisted suicide themselves in what Justice Sandra Day O'Connor called the "laboratory of the states." Even though the issue has been addressed by the court system, the cultural, legal, ethical, religious, and medical issues will continue to be studied, analyzed, discussed, and debated in the environment of the community. Each state now needs to set guidelines on how decisions about a person's final illness are made. The governor of Hawai'i has established a Blue Ribbon Committee on Living and Dying with Dignity to help make recommendations on the state's direction in this sensitive area. The legislature is expected to act on these

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recommendations, and each health care facility will need to update its policies and procedures as laws change. Your doctor, your lawyer, and your health care provider will be able to keep you informed about the latest guidelines. Due to the Supreme Court decisions, there is increased attention being focused on respecting a person's right to refuse treatment while providing appropriate access to health care (including hospice care, which will be discussed in the next chapter) and ensuring that adequate pain control is available. There should also be much more attention given to encouraging individuals to make medical treatment decisions in advance in order to ensure that their wishes are followed in accordance with applicable laws.

Surrogate Decision-Making or Family Consent Laws Historically, health care providers have turned to family members for consent in situations where an individual is no longer capable of making personal decisions, no advance medical directive has been prepared, and no guardian has been appointed. This traditional approach of surrogate decision-making, where a family member assumes the responsibility for decision-making on behalf of the incapacitated family member, had been considered an accepted "community practice." However, there is a growing sense that this community practice is no longer legally adequate. The increasing federal and state regulation of the health care industry, the emphasis on preserving the autonomy of citizens, and the growing populations of very old adults, many of whom have chronic conditions and are unable to make medical decisions regarding day-to-day situations, demanded passage of laws to clarify and extend this practice. Federal regulations promulgated by the Health Care Financing Administration for long-term care nursing facilities have been interpreted by regulators as requiring any facility resident determined to be decisionally incapacitated to have his or her rights exercised by a person appointed in accordance with state law to act on a resident's behalf. In cases where a resident has not been adjudicated incompetent by the state court, the regulators go on to indicate that any legal surrogate designated in ac-

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cordance with state law may exercise the resident's rights to the extent provided by state law. Historically Hawai'i did not have a statute that would provide for surrogate decision-making in the absence of prior health care instructions (except, for limited purposes, under the living will statute). Regulators concluded that, unless additional laws are enacted to recognize decisions by surrogates, guardianship actions in court may be required. Threats of citing facilities for noncompliance increased. In 1997, Hawai'i took the initiative to join the majority of states that recognize and permit surrogate decision-making by a family member or other individual in order to make necessary health care decisions on behalf of their incapacitated loved ones. The new law gives legal surrogates certain powers and responsibilities, but has limited applicability and, due to the confusing way it was written, certainly will be changed. The following information is rather technical, so be sure to ask a health care professional or attorney for clarification about any particular situation. The 1997 Health Care Decisions by Legal Surrogate Act created a two-year demonstration project that the legislature felt would protect the health and safety of a person who • previously had the ability, but who no longer has the ability, to understand the significant benefits, risks, and alternatives to proposed health care, and to make and communicate health care decisions • resides in a skilled nursing or intermediate care facility • has not executed a health care directive for health care decisions that addresses the specific health care decisions presented, at the time, by or to the facility or health care provider; or whose agent is unavailable and whose whereabouts cannot be ascertained within a reasonable period of time A resident who has capacity may designate another adult to act as a legal surrogate by personally informing the supervising health care professional in writing, or if writing is impossible, by another means of communication, to the supervising health care professional and at least one other competent adult. In the absence of a designation and when the resident is determined to lack capacity, any adult who has been unanimously selected by

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all available members of a resident's family may act as a legal surrogate. Under the new law the legal surrogate is responsible to: • act for the resident and make all day-to-day health care decisions for the resident in matters regarding health care during the period of incapacity of the resident in accordance with the resident's instructions, best interests, wishes, or values unless that authority has been expressly limited by the resident • provide health care decisions based on informed consent and the decisions the legal surrogate reasonably believes the resident would have made under the circumstances • provide written consent using an appropriate form whenever such a form is required • as appropriate, apply for public benefits, such as Medicare and Medicaid, for the resident, and have access to information regarding the resident's income, assets, and banking and financial records to the extent required to make the foregoing applications While the law lists the surrogate's responsibilities, it also imposes limitations. For example, "acute" medical care decisions in a hospital or the removal of life-sustaining medical treatment, such as tube feeding, in a nursing facility are not currently included in the coverage of a surrogate decision-making law. This act is to be monitored by a surrogate decision-making committee appointed by the governor and is reviewing and evaluating the effect of the act on health care decisions as well as reviewing existing statutes to provide greater protection to incapacitated persons. Consult with your physician, your attorney, or a health care provider to find out the status of the law and the policies and procedures established by any particular health care facility. Also, make sure you think about the person you would like to carry out those decisions for you and then put your instructions in a legally acceptable document. Failure to make your own decisions and to follow through with appropriate legal tools could subject you to decisions made by a person you would never have wanted to be involved in your life.

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SAMPLE "LIVING WILL" DECLARATION The following declaration sample form may be copied and used by filling in the blanks or may be changed to add more individualized instructions. Remember, other formats may also be used to provide health care instructions. Social Security Number:

-

-

LIVING WILL DECLARATION A. Statement of Declarant Declaration made this day of , 19 . I, , being of sound mind, and understanding that I have the right to request that my life be prolonged to the greatest extent possible, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below, and do hereby declare: My instructions shall prevail even if they create a conflict with the desires of my relatives, hospital policies, or the principles of those providing my care. If I should develop a terminal condition or a permanent loss of the ability to communicate concerning medical treatment decisions, with no reasonable chance of regaining this ability, I do not want to have my life prolonged. I would not want to be subjected to surgery or resuscitation. Nor would I then wish to have life-sustaining medicine or procedures. Instead, I request care, including medicine and procedures, for the purpose of providing comfort and pain relief. Permanent loss of the ability to communicate concerning medical treatment decisions means a state in which I am diagnosed by a physician as: (1) Being in a persistent vegetative state with no reasonable expectation of regaining consciousness; (2) Being in a deep coma with no reasonable expectation of regaining consciousness;

114 • The Elder Law Hawai'i Handbook (3) Having a permanent loss of the ability to participate in medical treatment decisions, secondary to severe neurological or brain damage, with no reasonable expectation of regaining this capacity.

CHECKLIST I have also considered whether I want tube feeding to be provided and have selected one of the following provisions by putting a mark in the space provided: ( ) I do NOT want my life prolonged by tube or other artificial feeding or provision of fluids by a tube if my condition is as stated above. ( ) I D O want my life prolonged by tube or other artificial feeding and provision of fluids by a tube if my condition is as stated above. If neither provision is selected or if both are selected, it shall be presumed that tube or other artificial feeding or provision of fluids by a tube are requested to prolong the declarant's life. This declaration shall control in all circumstances. Signed

Address

B. Statement of Witnesses I am at least eighteen years of age and not related to the declarant by blood, marriage, or adoption; and not currently the attending physician, an employee of the attending physician, or an employee of the health care facility in which the declarant is a patient. The declarant is personally known to me and I believe the declarant to be of sound mind. Witness

Witness

Address

Address

Medical Treatment and Health Care Decisions STATE OF HAWAI'I C O U N T Y OF Subscribed, by day of

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) ) SS. ) sworn to, and acknowledged before me by , the declarant, and subscribed and sworn to before me and witnesses, this , 19 .

Notary Public, State of Hawai'i My Commission Expires:

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SAMPLE CERTIFICATION OF CONDITION SPECIFIED IN PATIENT'S DECLARATION In my professional opinion, I hereby certify that (patient's name) has suffered a permanent loss of ability to communicate concerning medical treatment decisions and has the following condition or conditions: (diagnosis) According to the declaration, did not want lifesustaining procedures to be administered under these circumstances. Pursuant to the attached declaration or living will, the patient: ( ) does want tube or other artificial feeding or provision of fluids by a tube to prolong the patient's life. ( ) Does NOT want tube or other artificial feeding or provision of fluids by a tube to prolong the patient's life. Signed. Attending Physician

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SAMPLE DURABLE POWER OF ATTORNEY FOR HEALTH CARE There is a sample form of the durable power of attorney for health care decisions in the Hawai'i statutes. The following sample is not contained in the statute but was written in a manner to comply with the legal requirements of the statute and to attempt to give the agent additional powers for a variety of health care matters:

SAMPLE Social Security Number:

-

-

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

1. Appointment of Agent. My name is . I appoint the following person as my agent (also called attorney-in-fact or proxy):

In the event that my above named agent is unable or unwilling to act, I appoint

as alternate or substitute agent. The powers granted to my agent or alternate or substitute agent shall not be affected by my disability or incapacity. 2. Powers Granted to Agent. a. Health Care Decisions. My agent shall have the power to make any and all lawful health care decisions that I would make if I were able. My agent shall have the power and authority to resolve any issues regarding decisions whether my life should be prolonged through surgery, resuscitation, or life-sustaining medicine or procedures or the provision of nutrition or hydration. In making health care decisions on my behalf my agent shall follow my instructions as may be made known by me to my agent, including any instructions contained in a valid "living will," if I have one. If my instructions do not resolve or answer the issues raised by my incapacity, I want my agent to make decisions based on what my agent, in good faith, believes to be what I would have decided. I understand that

118 • The Elder Law Hawai'i Handbook these powers relating to health care decisions are only effective during periods of my incapacity as determined by a licensed physician and that no person can serve as both my attending physician and agent for matters relating to health care decisions. b. Other Health Care Matters. I also grant my agent the power to authorize my admission to or discharge from any medical, nursing, residential, outpatient, or home health care service, program, or facility and to arrange, contract for, and pay for consultation, diagnosis, treatment, or services as may be required for my care, without my agent incurring any personal financial liability. I grant my agent the authority to apply for public or private benefits, to include Medicare, Medicaid, and Hawai'i Quest benefits, and to have access to information regarding my income, assets, and banking and financial records to the extent required to make such applications. To the extent permitted by law, I grant my agent the power to make anatomical gifts, including organ donations, to authorize an autopsy, and to direct the disposition of my remains. Further, I grant my agent access to my medical records, authority to release information about me, authority to communicate with health care providers and insurers, authority to sign necessary forms and documents on my behalf, and permission to visit me in any setting. 3. Protective Proceedings. If protective proceedings for my person or estate are hereafter commenced, I nominate my above named attorney-infact as conservator, guardian of my estate, or guardian of my person for consideration by the court. 4. intent. I grant my agent broad powers relating to my health care. This includes the power to initiate legal proceedings to enforce and carry out health care decisions and other health care matters on my behalf and the general power to do whatever my agent deems to be necessary or convenient to act on my behalf. Date

Signature

, 19

.

Address

5. Statement of Witnesses. I am at least eighteen years of age and not related to the principal by blood, marriage, or adoption; and not currently the attending physician, an employee of the attending physician, or an employee of the health care facility in which the principal is a patient.

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The principal is personally known to me and I believe the principal to be of sound mind. WITNESSES:

Signature

Address

Signature

Address

STATE OF HAWAII

)

C O U N T Y OF

)

)

SS.

On this day of . 19 , before me personally appeared to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he or she executed the same as his or her free act and deed. Also before me appeared _ _ _ _ _ _ _ _ _ _ _ and witnesses, who witnessed the execution of the foregoing instrument.

Notary Public, State of Hawaii My Commission Expires:

5 In Sickness and In Health

Putting your house in order includes making preparations for the time when you may become sick and are unable to work or even stay in your own home. How to pay for health care, especially long-term care, is one of the greatest worries of older persons. Many people fear that, during a prolonged illness, the cost of doctors' and hospital bills and the expense of nursing home care will eat up their entire life savings, destroy dreams, and threaten impoverishment.

Caregivers and Caregiver Scams There are options available for long-term care that do not involve a nursing home. For example, you may consider hiring a caregiver in order to keep yourself or a loved one at home, which may or may not save money. There are increasing numbers of reports of individuals who hold themselves out to be "caregivers" and perpetrate scams against vulnerable individuals. Many of these so-called caregivers have no formal training or licenses. Some have criminal records. They often propose to provide inexpensive services that seem too good to be true. Often they will serve as live-in caregivers for little compensation. You may be tempted to hire them because they seem to provide services much more reasonably than professional caregiver enterprises. Once they get into your house, however, they can set you up for trouble. Some will "slip and fall" their way into getting a hefty settlement from you. Some will steal from you or invite conspirators 121

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to rob your home when the caregiver takes you out on an excursion. Others will have you sign documents and end up owning your home upon your death. If you are considering home health services, make sure you read the appendix, "Hiring a Caregiver." Read the Medicare and Medicaid sections of this chapter and the chapter on "Protective Services, Elder Abuse, and Neglect." Also check with the federal Medicare Hotline or Hawaii's Sage Plus Program of the Executive Office on Aging, which provides a wealth of information about health-related issues. Some of the terms included in this chapter can be found with expanded explanations in the yearly "Guide to Health Insurance for People with Medicare" published by the National Association of Insurance Commissioners and the Health Care Financing Administration of the U.S. Department of Health and Human Services. Adding to the worry about health care costs is the confusion surrounding the myriad of rules and regulations of all the different health care programs. Separate billings for doctors and hospitals, the complexity of technical or unfamiliar terms, and the use of small print and "legalese" in forms and insurance policies can confound even the professionals. This chapter will try to take some of the mystery out of how these programs work and how you can qualify for some of their benefits.

Health Maintenance Organization (HMO) versus Fee-for-Service Health Plans Since medical costs consume the largest portion of an older person's budget, older persons are being encouraged to join managed care programs, which are designed to keep costs down. Managed care plans, also called coordinated care plans or prepaid plans, include HMOs and competitive medical plans. When shopping for health insurance, carefully evaluate the choice between an HMO and the more traditional fee-for-service plan, which is more expensive but allows you to choose your own physician. To contain the cost of health care, the trend is toward HMOs and managed care rather than a fee-for-service program, which may have a larger deductible and a higher co-

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payment. If you choose an HMO, you may not be able to change your mind easily. You also may have to wait for the open enrollment period to come around. If the physician of your choice does not participate in a particular HMO plan, you may wish to stick with your fee-for-service health plan even though it may be more expensive.

Medicare Most working persons know about Medicare since they pay Medicare taxes or premiums every pay period just as they pay Social Security taxes. As many people already know, Medicare has changed over the years and is likely to continue to change— although no one can predict how much. The following information is current as of 1997. Medicare (not to be mistaken for Medicaid, which is the health assistance program for people with limited income and assets) is the major federal health insurance program run by the Health Care Financing Administration (HCFA) of the U.S. Department of Health and Human Services. All persons age sixty-five and over who are receiving Social Security are automatically enrolled in Part A of Medicare. The Social Security Administration provides information about the program and handles enrollment. Medical bills and claims are handled by private insurance companies under contract with and monitored by the government. Unlike Medicaid, Medicare has no resource limitations for eligibility. Generally, Medicare helps pay health care bills for people sixty-five or older who receive Social Security benefits and for those under age sixty-five who have been entitled to disability benefits for twenty-four months. Other eligible persons include the blind and insured workers who have permanent kidney failure and their dependents. Individuals who do not have sufficient "quarters" of work credit to receive Social Security benefits may pay premiums in order to be enrolled in Medicare. For most eligible people, enrollment in Medicare is virtually automatic and can be done through the mail. The Social Security Administration typically sends notices to individuals who are about to turn sixty-five. If you feel you are eligible to receive

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Medicare benefits, you should apply at one of the numerous Social Security Administration offices. In most areas of the country, you now can choose to either receive your Medicare benefits through the traditional fee-for-service delivery system or through a managed care plan such as an HMO. People approaching age sixty-five should remember that they do not need to retire to get Medicare coverage. The law provides for separate applications for Social Security retirement benefits and for Medicare. While Medicare is not automatic and you must apply for it, the federal government makes enrollment very easy for qualified individuals. Medicare Coverage under Fee-for-Service Plans There are two parts to the Medicare program, Part A (Hospital Insurance) and Part B (Medical Insurance). Each part has a complex system of benefits, coverage exclusions and limitations, co-payments, and deductibles. If you are covered by a fee-forservice plan and not by an HMO plan, you will need to pay Medicare deductibles and co-payments. If you are covered by an HMO plan, your contract with the HMO will dictate what you will have to pay. Generally, you will not need to pay the Medicare deductibles and co-payments. Medicare Part A Hospital Insurance (Part A) helps pay for inpatient hospital care, some inpatient care in a skilled nursing facility, home health care, and hospice care. These facilities are called "providers." If you are hospitalized, your provider will submit its claims directly to Medicare. Your provider will, however, charge you for any portion of the Part A deductible you have not met and any co-insurance you owe. Part A covers expenses incurred during periods of acute illness that require inpatient hospital care. Following a hospital stay, Part A also covers the expense of inpatient care in an extended care facility such as a skilled nursing facility. Medicare Part A pays qualified participating hospitals and skilled nursing facilities for expenses incurred by persons as inpatients (i.e., ad-

In Sickness and In Health • 1 2 5

mitted to a hospital or extended care facility for bed occupancy) in connection with hospitalization. Part A also covers limited periods of care in a skilled nursing home or under an approved home health care plan. Part A Benefit Periods Reasonable hospital costs are covered up to a maximum of ninety days in any single "spell of illness" (also referred to as a "benefit period"). This is defined as a period of consecutive days that begins the first day a patient receives inpatient hospital or posthospital extended care services and ends sixty days after the patient is no longer in the hospital or extended care facility. The Medicare-eligible patient is responsible for an insurance deductible ($760 in 1997) for each spell of illness. A patient may pay more than one deductible amount per year if he or she has more than one "spell of illness." A patient will also have to pay a coinsurance amount per day ($190 in 1997) for the sixty-first through the ninetieth day of care, and co-insurance charges ($380 per day in 1997) for "lifetime reserve" days used. After these days are used, the patient is responsible for the entire bill. Currently, each eligible Medicare Part A enrollee is entitled to a total of sixty reserve days to draw on. Medicare Skilled Nursing Facility Care Coverage Medicare Part A has very limited coverage for skilled nursing care. Generally, care must be ordered by a physician. There is a requirement for a three-day hospitalization immediately prior to or within thirty days following entry into a skilled nursing facility. Co-insurance payments are also required ($95 per day in 1997) for days 21 to 100. While coverage is limited to one hundred days per spell of illness, custodial care is not covered. Most care provided in a nursing home is not covered by Medicare. (See the section on long-term care for further information.) Medicare Part B

Medical Insurance (Part B) helps pay for medically necessary doctors' services, outpatient hospital services, home health care, and a number of other medical services and supplies that are not covered by the hospital insurance part (Part A) of Medicare. It is

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voluntary and enrollees pay a monthly premium. Enrollment is virtually automatic, but a person may elect not to pay the monthly premium ($43.80 in 1997) and not receive the coverage. Most people find that it is beneficial to enroll. People who are over sixty-five and do not have Part B coverage have a chance to sign up during an annual open enrollment period that runs from January through March. This open enrollment period gives people another chance to sign up if they did not do so when they were first eligible or if they dropped their coverage. Most enrollees must pay a 10 percent surcharge (over the $43.80 per month premium amount) for each year they could have enrolled but did not. Benefits include coverage for medically necessary physicians' service, outpatient hospital services, outpatient physical therapy, speech pathology services, home health services, diagnostic tests, and medical appliances. Part B benefits are designed to supplement and extend the benefits provided by the Part A program. Medicare Part B Deductibles and Co-Insurance Amounts As under Part A, there are certain deductible and co-insurance amounts the Part B recipient must pay. The Part B annual deductible consists of the first $100 of covered services plus the cost of the first three pints of blood if blood is needed. After the recipient pays the annual deductible, Part B will pay for 80 percent of the remaining approved charges or costs of covered services. The Part B recipient pays the remaining 20 percent co-insurance amount. There is no co-insurance requirement for home health services under Part B, and no deductible or co-insurance for certain clinical laboratory services, such as blood tests and urinalysis. Also, the co-insurance payment is waived if the recipient purchases used durable medical equipment, such as a used wheelchair or hospital bed. Besides the deductible and co-insurance, you may have to pay other out-of-pocket expenses if your doctor does not accept assignment of your Medicare claim and charges more than Medicare's approved amount. To avoid having to pay excess charges, HCFA recommends that you ask your physicians and medical suppliers whether they accept assignment.

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Medicare Home Health Services Coverage Medicare Part A and Part B can pay for home health services if a homebound patient under a doctor's care requires "intermittent skilled nursing care," or physical, occupational, or speech therapy. For home health benefits, you do not have to pay a deductible or co-insurance (except for 20 percent of the approved amount for durable medical equipment). Prior hospitalization is not required. Medicare pays the full cost of medically necessary home health visits by a Medicare-approved home health agency. These services are usually provided on a periodic basis by a visiting nurse or home health aide. To qualify for Medicare home health coverage: 1. A physician must determine that you need medical care in your home and must prepare a home health care plan. 2. Intermittent skilled nursing care, physical therapy, or speech therapy services must be included in your care plan. 3. You must be homebound. 4. Medicare must approve the home health agency serving you. 5. If you qualify, Medicare will pay for intermittent or parttime nursing care and home health aide services. Other services, supplies, and equipment are also covered. Medicare Hospice Care Coverage Medicare pays for hospice care for terminally ill patients who elect hospice benefits instead of regular Medicare benefits for the management of their illness. Terminally ill patients are those whose life expectancy is six months or less. Under Medicare hospice care, the focus is on care, not cure. The program of care is generally provided in the patient's home. Short-term inpatient care is authorized, and there is no deductible for any approved hospice care benefits. Co-payments are only required for a small portion of outpatient drugs for pain relief and symptom management and inpatient respite care.

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As with other Medicare benefits, there are rules, which can change from time to time. Currently, patients are entitled to two ninety-day hospice election periods, one subsequent thirty-day election period, and a subsequent extension of unlimited duration. The election periods must be used in a certain order, and it is important to know that the attending physician is the key to obtaining hospice benefits. Of course, regular deductibles and co-insurance amounts are paid by the beneficiary when regular Medicare benefits are used for treatment of a condition other than the terminal illness. Finally, when blood is furnished by a hospital or skilled nursing facility during a covered stay, Medicare pays for all but the first three pints of blood when transfusions are determined to be medically necessary. Requirements for Medicare Coverage under Fee-for-Service Plans There are two important things to remember when Medicare coverage is an issue. First, Medicare pays an approved amount for care that is determined to be "reasonable and necessary" for the diagnosis or treatment of an illness or injury. Care is not considered reasonable and necessary if a doctor places you in a hospital or skilled nursing facility when the kind of care you need could be provided elsewhere. Also, Medicare will not cover your stay in the hospital or skilled nursing facility longer than you need to be there. Medicare payments will end when further inpatient care is no longer reasonable and necessary. Second, Medicare will not pay for custodial care. Care is considered custodial when it is primarily for the purpose of helping someone meet personal needs and could be provided by persons without professional skills or training. For example, Medicare will not pay for help in walking, getting in and out of bed, bathing, dressing, eating, or taking medicine. Medicare Premiums and Slimby and Quimby Programs In 1997, for those who are over sixty-five and not eligible for Social Security benefits, the premium for Part A was between $187

In Sickness and In Health • 1 2 9

and $311 a month, depending on the number of work quarters a person was credited with under Social Security. The premium for Part B is $43.80 a month (1997). To pay respective parts of the monthly Medicare premium, the federal government has two programs for qualified low-income Medicare recipients. These programs are the Qualified Medicare Beneficiary (QMB or "quimby") program and the Specified Low-Income Medicare Beneficiary (SLMB or "slimby") program. QMB is a program under which the state pays Part A hospital insurance premiums and Part B monthly premiums, including the deductible and co-insurance amounts. Under the SLMB program, the state pays the Part B medical insurance premium. To qualify for QMB, you must be eligible for Medicare, you must meet basic Medicaid eligibility guidelines, your income must be at or below the federal poverty level, and your resources must be very limited. Resources may be double those permitted by Medicaid, however. Accordingly an individual may retain up to $4,000 in assets and a couple may retain up to $6,000 and still qualify for QMB. To be eligible for SLMB, you must also meet the basic Medicaid eligibility guidelines, your income must not be more than 120 percent of federal poverty level guidelines, and your resources must be no higher than those standards listed for QMB. Federal poverty levels change annually and are generally announced in February. If you think you qualify, contact the state Department of Human Services. Medicare Fiscal Intermediaries and Carriers

Private insurance companies under contract to the federal government that handle Part A are known as "fiscal intermediaries" while those that handle Part B are called "carriers." The contracts with the federal government are subject to change, but the Social Security Administration will keep you informed as to the current fiscal intermediaries and carriers. In addition to paying claims, fiscal intermediaries and carriers are responsible for setting payment rates and charges and assisting providers in complying with Medicare requirements and standards. While all matters concerning eligibility for Medicare benefits are handled

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by the appropriate Social Security Administration district office, complaints and inquiries concerning payment of bills and coverage under either Part A or Part B are handled by either the fiscal intermediary or the carrier. If you believe that a doctor, hospital, or other health care provider performed unnecessary or inappropriate services or billed you for services you did not receive, you should report this to the Medicare fiscal intermediary or carrier that handles your claims as well as send a copy to the Social Security Administration. Review of Medicare Claims and Appeals If you feel that Medicare did not pay* the correct amount on a claim or if it refused to pay for a service that you believe is covered, you have a right to request a review of the claim. Your Social Security office can help you with this request. Additionally, you can appeal decisions through an administrative hearing and, ultimately, through the federal court system. Peer review organizations (PROs), fiscal intermediaries, and carriers handle initial determinations and reconsiderations of claims. Part A inpatient hospital coverage determinations are made by PROs. PROs are groups of doctors paid by the federal government to monitor the care given to Medicare patients and to decide whether care was reasonable, necessary, and appropriate. For skilled nursing facilities, home health services, and hospices, reconsiderations are made by intermediaries. For Part B claims, the carrier first reviews a claim. If it is not approved, the claim may be submitted before a carrier hearing. After reconsiderations for Part A claims and reviews for Part B claims, hearings by administrative law judges may be held, followed by appeals to the Health and Human Services Department appeals board. Ultimately, an appeal may be taken to a federal court, which has its own further appeals process. There are various threshold amounts that must be reached at various stages of appeal, depending on the type of coverage that is being appealed. For example, for an appeal of Part B coverage, a case

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must involve $100 or more after a review by the carrier to qualify for a carrier hearing; it must involve at least $500 after the carrier hearing and qualify for an administrative law judge hearing; and it must involve at least $1,000 in order to take it to federal court. If Medicare becomes too confusing, the staff at your local Social Security office can assist you. Free brochures explaining various aspects of Medicare are also available. The Medicare carrier is another source of assistance. The State of Hawai'i Executive Office on Aging has information available. Lastly, the billing office at your hospital or doctor's office may be able to help you with a claim. Medigap Insurance Policies A Medicare Supplemental Insurance Policy, or "Medigap" policy, is a health insurance policy designed to supplement Medicare. It is sold by private insurance companies to fill in certain "gaps" in the federal Medicare program. Medigap insurance is regulated by federal and state law. Accordingly, insurance companies offer ten standard Medicare supplement benefit plans. Each of the ten plans has a letter designation, ranging from "A" to "J." Plan A is the most basic while Plan J is the most comprehensive. Plans B-J each include Plan A, plus a different combination of benefits. Insurance companies are not permitted to change these designations or to substitute other names or titles. They may, however, add names or titles to these letter designations. While companies are not required to offer all of the plans, they must make Plan A available if they sell any of the other nine in a state. Check each policy for coverage or exclusion of existing medical conditions. These supplemental policies are designed primarily to cover Parts A and B of Medicare. Medigap policies generally supplement the coverage of Medicare eligible expenses but usually do not supplement the types of medical expenses covered. No Medicare Supplemental Insurance Policy will cover everything that Medicare does not cover. You should also realize that if you enroll in an HMO there may be no reason to purchase a Medigap

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policy. If you are a potential Medigap policy buyer, you should be aware of two important facts concerning Medicare and Medicare supplemental policies: 1. Custodial Care Not Covered. Medicare does not cover custodial care—even if that care is provided in what used to be called a "skilled nursing facility." Medicare only covers skilled nursing care—care that requires ongoing professional supervision. Most Medigap policies also do not cover custodial care and may be vague on the entire subject of nursing home care. 2. Limited Medical Coverage. Actual medical charges may not be entirely covered under either Medicare or Medicare plus supplemental policies. The physician's actual fee may be more than what Medicare considers "medically necessary" or "customary and reasonable." If Medicare pays a percentage of these "allowed" charges and a Medigap policy pays the balance of the "allowed" charges, there still may be an excess amount you have to pay. You should be just as careful and "choosy" in buying insurance as in buying any other consumer item. Compare the costs and benefits of several policies. Be suspicious of an insurance agent who pressures you to buy immediately. Ask for a copy of the policy and for time to make a decision. Insurance policies are usually complicated, so you should ask a knowledgeable friend or your attorney for advice. When you do not understand a policy that you are considering signing, have someone you trust read it for you. You should also check with other people to see how the company treats its policyholders in general. Do not rely on oral promises; the written policy determines the coverage. HMOs and Medicare While most individuals participate in the traditional Medicare fee-for-service program, managed care through an increasing number of HMOs is a growing trend. Managed care plans for Medicare recipients can be seen as a collaboration between insurers and health care delivery systems. Medicare HMOs pro-

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vide you with coverage for Parts A and B and, except for the HMOs contracted co-payments, you do not have to pay the Medicare deductibles or co-payments. In order for HMO to participate in Medicare, it must: • enter into a contract with the Department of Health and Human Services • offer Medicare beneficiaries services that are as broad as those offered under the Medicare program • be in existence for at least two years and have an enrollment of 25,000 individuals, of whom not more than 50 percent are on Medicare. If the HMO is approved by the Department of Health and Human Services, Medicare participants can sign up during a specified thirty-day open enrollment period. When you join an HMO, your cost of medical care may go down but your options may also be limited. You may not be able to see the doctor you want. The doctor who has treated you all your life and knows your medical history may not belong to the HMO. Also in joining an HMO, be aware that there are three kinds of plans that provide HMO benefits: 1. Medicare risk plan—you receive all Medicare services from the elected HMO. Medicare pays the HMO a monthly fee and the HMO charges a low monthly premium for additional services. The HMO must accept all eligible individuals. 2. Medicare cost plan—you can receive your medical care from the HMO or go outside the HMO for services. Medicare will reimburse the HMO or pay the provider directly. The HMO must accept all eligible individuals. 3. Medicare health care prepayment plan—the HMO will provide a limited amount of services, such as doctors' inpatient and outpatient services, clinical laboratory services, and physical and speech therapy. You will have to go outside for hospitalization or skilled nursing facility care. The HMO can reject unhealthy applicants.

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Even though the cost of HMOs may be less than fee-forservice plans, there is some concern that elderly and disabled individuals enrolled in an HMO may not get all the medical services they need. Because HMOs are reimbursed differently by Medicare and because the individuals using them may require expensive and extensive medical care, some fear HMOs may stint on the quality of care. To be fair, other studies point out that care does not change for the worse when a person enrolls in an HMO. Since it is to the HMO's advantage to keep the patient healthy and not using up costly medical services, care can even be better. This seems to be the case especially if the person is younger and healthier. The issue of "due process" and appeal rights within an HMO for Medicare recipients is also troublesome in some areas of the country. The HMOs prefer to address complaints and review hearings and appeals within their own systems rather than through traditional Medicare appeals processes. Even with an appeals process in place, an HMO may not be very responsive to the complaints of participants about denials, terminations, or the extent and quality of services. Services are even sometimes denied pending a resolution of the issues. Although Congress is acting to address some of these problems, the trend in the United States is toward reducing Medicare costs. Unfortunately, you can expect pressure to reduce services as well. Attorneys and other advocates certainly can play a role in assisting you if you feel that you are not receiving adequate services and you do not know how to pursue your complaint, review, hearing, and appeal rights. Before selecting an HMO, read the contract to find out how conflicts are resolved, what services are covered or not covered, and what the restrictions are if you use an outside doctor.

The Hawai'i Quest Program and Medicaid In Hawai'i, the Department of Human Services (DHS) operates two health programs for needy or low-income individuals: Hawai'i Quest (Quest) and Medicaid. These programs are only for Hawai'i residents. In 1997, Quest was for those under sixty-

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five and Medicaid was for those over sixty-five or, if under sixtyfive, for those who were blind, disabled, or had kidney disease. Presently, the Quest program has three parts: Quest, Quest-Net, and Quest-P. Each Quest program has its own asset limits and other eligibility criteria, types of services provided, and cost to enroll. (These are described in an appendix.)

Quest Quest began operating on July 1,1994, as a federally supported, five-year demonstration program. Its goal was to provide universal health coverage to the people of Hawaii through managed health care. Quest contracts with private insurance plans to participate in "public assistance" medical programs. If you are eligible, the Quest program will provide you with a wide range of medical, dental, and mental health benefits and a choice of private health plans. You pay the state a premium share, which is a monthly fee based on a sliding scale. If your income is less than the federal poverty level, you do not have to pay a premium. Quest currently has an income test that requires participants to pay premiums for coverage when income is over the federal poverty level (which in 1997 was $756 a month for a single person and $1,017 for a couple). Quest also has introduced assets tests which are the same as for Medicaid. You can own a car or a home or have a moderate savings account or other assets and still be eligible. Presently, those who are recipients of public assistance benefits under current welfare reform standards and many people who were members of the former State Health Insurance Program (SHIP) fall under the Quest program. The State of Hawaii is in the process of incorporating all of the former public assistance medical programs into Quest, including Medicaid. Until Medicaid is incorporated into Quest, individuals who are sixty-five years old or older or who are blind or disabled remain in the Medicaid program. The criteria for eligibility for each program are undergoing many revisions. It is best to check with the Department of Human Services for the latest information.

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Medicaid Medicaid is the federal-state health care program currently being run by the State of Hawai'i Department of Human Services and designed to provide medical assistance for certain lowincome individuals and families who are not eligible for Quest. This program, also called the Medical Assistance Program or Title XIX of the Social Security Act, is financed jointly by the federal government and the state. Medicaid rules and regulations vary from state to state because of the joint financing between the federal government and each state. Currently, Medicaid in Hawai'i covers individuals who are sixty-five years of age or older or who are disabled or blind or have kidney failure and who meet citizenry and income requirements. Medicaid will pay for many medical services, including inpatient hospital care, outpatient hospital services, laboratory and x-ray services, skilled nursing facility services, the services of physicians, and home health services. However, before Medicaid will pay, these services must have been ordered by a physician and the hospital rendering the services must be approved for participation in Medicaid. Medicaid Eligibility Requirements

All applicants or recipients of Medicaid must be U.S. citizens or aliens with permanent resident status who have been in the United States continuously for a period of five years. They also must be residents of Hawai'i, must not be residents of a public institution (such as a prison), and must furnish a Social Security number. Effective January 1997, aliens who entered the United States after August 21,1996, may be subject to a five-year ban on receiving Medicaid except for certain emergency services or under certain exceptions. After meeting the basic eligibility requirements, a person is categorized into coverage groups to determine the treatment of assets and income. The categorical eligibility requirements for Medicaid groups are:

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• individuals age sixty-five or over • individuals who are blind and their status is established by the Social Security Administration or the state • individuals who are disabled and their status is determined by the Social Security Administration or the state Since Medicaid targets the poor, individuals must meet income and asset resource criteria in order to qualify for benefits. The income and assets of all family members living together who have a legal responsibility for support will be considered in determining financial eligibility. To qualify for Medicaid, an aged or disabled individual must not receive more than the federal poverty limit in income. This poverty limit varies, depending on the household size. If a person's income exceeds the federal poverty limit, eligibility may be established by using the "medically needy standard," which is also the eligibility criteria used for blind people. A person may be eligible for Medicaid if monthly medical expenses are greater than the difference between the monthly income and the medically needy standard (which in 1997 was $426). This difference is called the "cost share," and medical assistance will cover the portion of medical bills each month that exceeds this share. There are many complex rules governing what will be considered countable income. For example, "earned income" includes wages, but $65 of this amount is excluded for counting purposes. "Unearned income" is income that is not "earned," and includes such things as Social Security benefits and pensions. Of this unearned income, $20 and certain types of payments such as general assistance payments are excluded. The fact whether you are sharing living expenses with another or whether someone else is contributing to your living expenses also determines what income is countable. You may be surprised how many people qualify for Medicaid who appear to receive income over the federal poverty level. There are also asset limitations on Medicaid eligibility. A single person can have no more than $2,000 in countable assets, a couple can have no more than $3,000 in countable assets, and $250 is added for each additional family member. There are

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exceptions for Medicaid coverage for long-term care for a married couple (which will be discussed later in this book). Countable assets are based on the asset value as of the first of each month but do not include home property, one wedding ring and one engagement ring, $1,500 in equity in a funeral plan, clothing or household furnishings, a burial space for each family member, and one automobile valued at not more than $4,500 with exceptions. These are called exempt assets. Qualified "special needs trusts" for disabled individuals are also exempt. Right to Review of Medicaid Determinations Under federal law, an individual is entitled to written notice of any decision that an application has been denied, or if the application is not processed within the required period of time, or if there has been a refusal to pay for medical services, or if there is a determination that the person is no longer eligible for Medicaid. This notice should inform the individual that he or she has the right to file a request for a "fair hearing" within ninety days from the date of the notice. A decision must be made within ninety days of the request for a hearing. If the decision rendered at the hearing is unfavorable, the government should provide information on how the decision may be appealed. Medicaid's Expansive Coverage, Including Nursing Homes As discussed previously in the QMB and SLMB section, if you qualify, Medicaid can help you even if you also receive Medicare. Medicaid can pay for your Medicare Part B Insurance premium and your annual deductible. It can pay the balance of hospital and doctors' bills not paid by Medicare. Medicaid can also provide benefits not covered by Medicare, such as prescription drugs, eyeglasses, hearing aids, and other health services. Medicaid can also pay for certain long-term care costs, including the costs of care in a nursing home. This is another reason that, if you need help with your health care bills, you should consider applying for benefits at the state Department of Human Services.

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Medicaid Long-Term Care Coverage for Spouses While Medicaid can pay for nursing home care, eligibility rules change depending on whether the institutionalized person is married or single. If the institutionalized person is single, regular Medicaid eligibility rules apply. If he or she is married, special federal "spousal impoverishment" provisions apply. To have spousal impoverishment provisions apply, one of the married partners needs to be in a nursing home and the other needs to remain in the community. Both cannot be in nursing homes. Medicaid uses the term "institutionalized spouse" to mean the spouse in the nursing home and the term "community spouse" to mean the spouse who stays at home. Since the federal spousal impoverishment provisions do not apply to single persons needing nursing home care, unmarried couples or partners, even if they are reciprocal beneficiaries under Hawai'i law, are currently left out. Note that general Medicaid eligibility requirements apply if nursing home care is not an issue or if medical care is also needed by an institutionalized resident of a nursing home. Under the spousal impoverishment provisions, when an individual is "institutionalized" or placed in a long-term care facility, the spouse who remains in the community is permitted to keep some assets and income for his or her maintenance. In the past, this amount was set at very low Medicaid eligibility levels, and assets and income above these amounts had to be spent for the long-term care of the person who was institutionalized. Medicaid Deeming Rules Traditional Medicaid rules required that if both spouses lived together, their incomes and resources were "deemed" or considered available to each other whether or not they actually contributed to each other's support. As a result of Medicaid "deeming" rules, both for determining eligibility and in the treatment of income after eligibility had been established, the spouse in the community was often left with income below the poverty

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level. The amount of the allowance could not exceed the Supplemental Security Income (SSI) standard for an individual residing at home or the medically needy standard for one person. The couple needed to virtually deplete their life savings, leaving the community spouse with very little on which to survive. This circumstance was referred to as "spousal impoverishment." Medicaid Provisions under the Medicare Catastrophic Coverage Act (MCCA) Several years ago, Congress passed the Medicare Catastrophic Coverage Act (MCCA). The spousal impoverishment provisions in this act provide certain income and resource protection for the spouse who remains in the community. MCCA Income and Resources Presently, under the MCCA the income of the community spouse is not considered available to the institutionalized spouse. Income is considered to belong to the spouse in whose name the check or other instrument is made payable. However, if the check or instrument is in the name of both spouses, then one-half of the amount will be considered available to each spouse. This rule is known as "attribution." The community spouse can now be given an allowance from the institutionalized spouse's income to bring his or her monthly income up to a certain amount ($1,976 in 1997) as a maintenance needs allowance. This "spousal income allowance" will probably increase annually to take into consideration the rise in the cost of living. The institutionalized spouse will be allowed to keep $30 of his or her gross income for personal needs. The rest of his or her income above the personal needs allowance and spousal allowance will be used to pay his or her share of the nursing home bills. In addition to changing the rules about income, the MCCA also changed the rules concerning the amount of resources a couple is allowed to keep and still qualify for Medicaid to pay for long-term care. Under 1997 standards, if the couple's "nonexcluded resources" exceed $79,020, then only the excess of $79,020

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will be attributed to the institutionalized spouse in determining eligibility and will be used to pay for his or her nursing home care. In other words, the community spouse will be able to keep up to $79,020 as an asset allowance in addition to such excluded assets as the family residence, an automobile, household and personal effects, and certain other items. Once the total assets of the couple are added up, the amount over $79,020 is considered a countable asset under the traditional method of determining Medicaid eligibility. For example, if a couple had $81,020 in nonexcluded assets, a spouse could be still be eligible for Medicaid long-term care benefits since the amount over the asset allowance is $2,000, which is within the amount permitted under Medicaid. These income and resource limits are expected to change periodically, but you can see that more income and assets are now available to the community spouse and there may no longer be any impoverishment. MCCA Exempt Assets Medicaid guidelines for exempting certain assets still apply. Again, countable assets are based on the asset value as of the first of each month but do not include home property, one wedding ring, one engagement ring, $1,500 in equity in a funeral plan, clothing or household furnishings, a burial space for each family member, and one automobile used for work or to go to the doctor. MCCA Inapplicability to Unmarried and Dually Institutionalized Couples Of course, spousal impoverishment protections do not apply to unmarried couples who face the same costs of nursing homes and the threat of impoverishment. Unlike legally recognized married couples, unmarried couples cannot take advantage of the same transfer of assets provisions as married couples and are treated as single persons. Likewise, the MCCA spousal impoverishment provisions do not apply to married people who are both in a long-term care facility. Remember, to be eligible under the MCCA, there must be one spouse in the community and one spouse receiving longterm care.

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MCCA Look-Back and Penalty Periods and Criminal Sanctions The transfer of any asset, with certain exceptions, for less than fair market value for the purpose of qualifying for Medicaid long-term care benefits, whether for single or married people, can result in a period of disqualification. In 1993, Congress extensively amended the Medicaid transfer provisions. Increasingly stringent laws have continued to be enacted. Generally, and with a few exceptions (of course), Medicaid payment for long-term care is denied to institutionalized individuals who transferred any nonexempt asset or his or her home within a certain "look-back" period for less than fair market value (except to his or her spouse) for the purpose of qualifying for Medicaid. If a transfer of assets was made within the look-back period, Medicaid will assume that the intention was to qualify for Medicaid long-term care. The look-back period for transfers from an individual to a nonspouse in 1997 is thirty-six months prior to or on the date of application for benefits or sixty months when transferring assets to certain trusts. If a transfer occurs within thirty-six months of applying for Medicaid, Medicaid eligibility will be denied the applicant for as many months as is required to spend the uncompensated value of the transferred asset on nursing home care based on an average nursing home care costs in the area. Again, this thirty-sixmonth look-back period is extended to sixty months for determining whether assets have been transferred to a trust. It should be noted that, in Hawai'i, the average monthly cost of nursing home care in 1997 was over $7,000. There is no upper limit on the time an individual can be found ineligible for Medicaid long-term care coverage under these rules. For example, if the average monthly cost of a nursing home in Hawai'i is $7,000, and $700,000 of assets was transferred, the individual would be disqualified for one hundred months, or a little over eight years. If a person had significant assets and still would want to qualify for Medicaid long-term care coverage, he or she might wish to consider some commonsense measures. For example, after a person transfers significant amounts (e.g., over $250,000) not involving a trust in an attempt

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to qualify for coverage, he or she should wait until the thirty-sixmonth look-back period is over before applying for benefits. Transfer penalties apply to all assets transferred for less than fair market value for the purpose of qualifying for Medicaid long-term care benefits. If the transferred asset is the family home, however, such a transfer will not be penalized if the transfer is to the individual's spouse, a child under twenty-one years of age, an adult child who is blind or disabled, a sibling with equity interest who resided in the individual's home for one year before institutionalization, or the individual's adult son or daughter who lived in the individual's home for two years prior to the individual's institutionalization and had cared for the individual. The transfer of assets penalty will also not apply to assets other than the home that were transferred to trusts established after August 10,1993, for the sole benefit of an applicant's child who is under twenty-one years of age or is blind or disabled, or to a disabled individual under age sixty-five. The transfer penalty can be negated if all the assets were returned to the owner. Although the spousal impoverishment provisions will make it easier for individuals to qualify for Medicaid, many people must still "spend down" the bulk of their assets before they can qualify for coverage under Medicaid. Seek competent professional advice before making any major decisions in this area. The Health Insurance Portability and Accountability Act of 1996 was signed into effect by the president in August 1996. This law contains a provision that makes it a criminal offense to dispose of assets for purposes of obtaining Medicaid eligibility if the transfer results in the imposition of a period of ineligibility. The law was changed in 1997 to make it a crime to provide advice for a fee on disposing of such assets if the transfer results in the imposition of a period of ineligibility. Elder law attorneys around the country are not certain how this law came into effect or what its consequences might be. This law, however, reflects Congress's desire to tighten eligibility standards for long-termcare financing programs such as Medicaid. Attorneys should keep themselves informed of these attempts to criminalize their counseling activities and should warn their clients that these

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laws change quickly and that Medicaid planning continues to be a very uncertain field. As a further caution, all these rules will probably be changing, perhaps rapidly, with the new political climate in Washington, D.C. There is some discussion of extending the look-back period to ten years. As a further caution, look at the plans you may have made a few years ago to see if they make sense today. For example, at one time, trusts were used to attempt to shelter assets for Medicaid recipients. Medicaid Liens and Estate Recovery Provisions Besides a period of ineligibility, the Omnibus Budget Reconciliation Act of 1993 mandates states to include provisions for estate recovery and lien provisions. It is important to know that the State of Hawai'i now has "lien" and "estate recovery" provisions to seek reimbursement of certain medical costs paid by the state. The state recovery of medical assistance payments is made from the estates of individuals who received assistance while in a nursing facility or from individuals not in nursing facilities who received benefits from age fifty-five. Currently the home of an individual in a nursing facility is exempted as an asset if there is a stated intention to return to the property. This provision is, as with everything else, subject to change. Federal regulations require the state to recover Medicaid payments from medically institutionalized recipients. The placement of liens on the home property of these recipients for the purpose of recovering Medicaid payments is authorized by Hawai'i law. If the Medicaid recipient's stay in the medical institution is likely to be permanent—based on a determination whether the recipient can reasonably be expected to be discharged from the medical institution and return home—the state will send a notice to inform the affected recipients that a lien may be placed on the home. Liens will not be placed on the home property if the spouse, a child under twenty-one years of age, a child over twenty-one years of age who is blind or disabled, or a sibling who has an equity interest in the home and has resided in the

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home at least one year prior to the institutionalization of the person currently resides legally on the property. The lien will be dissolved when the individual returns to the home property after being discharged from the nursing home. A lien on the home does not change the ownership of the property but secures the asset for future reimbursement to the state for the cost of medical care when the property is sold or transferred. Recovery from the lien on the home will take place when the home is sold or transferred while the recipient is still living. After the death of the recipient, recovery cannot be pursued while the surviving spouse is living there or there is a child who is under twenty-one years of age or a child over twenty-one years of age who is blind or disabled. Further, recovery from the lien will not be made if a sibling who has an equity interest in the home and has resided in the home at least one year prior to the institutionalization of the person or an adult child who is not blind or disabled who lived in the home for at least twenty-four months prior to the institutionalization of the owner and who provided services that delayed the institutionalization currently resides legally on the property. These individuals must have continuously lived in the home since the recipient's admission to the medical institution. Recovery may be waived for the period that the real property is the sole income-producing asset—such as a family farm or other family business—and the income produced by the property is not greater than 100 percent of the federal poverty guidelines for the number of family members solely dependent on the real property. Recovery may also be waived if the real property is a home of modest value that is occupied by the family members who lawfully resided in the home for a continuous period that started at least three months immediately before the recipient's admission to the medical institution and provided care that allowed the recipient to reside in an institution and these family members do not own other real property and have income not greater than 100 percent of the federal poverty limit. As you see, there are many rules and exceptions that apply as to how the lien is to be placed and when estate recovery will be pursued, and I am sure these rules will change. It is best to check

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with your attorney or the Department of Human Services about these provisions when trying to qualify for Medicaid. In view of the thirty-six or sixty-month look-back period, the estate recovery provisions, and the risk of liens, it is important to analyze the rules about transferring assets along with potential income tax and estate and gift tax consequences in attempting to shelter assets. Consult an estate planning attorney before doing so.

Long-Term Care Insurance Since Medicare does not provide for an unlimited number of days in a hospital and covers only acute stages of illness or injury, how to pay for long-term care can be very worrisome. The three most common means of financing long-term care are direct payment by patients or their families, long-term care insurance, or the Medicaid program. If you are eligible for full Medicaid benefits, you probably do not need more insurance since most of your health care costs would be covered. In fact, if you are entitled to both Medicare and Medicaid benefits, an insurance company cannot sell you a Medigap policy unless the state pays the premiums for you. If you decide to buy long-term care insurance, be a responsible consumer. Some points to consider are the following: 1. Whether the company writing the policy is licensed in the State of Hawai'i (if it is not, the State Insurance Division may not be able to assist you if you run into difficulty). 2. Whether the policy has a guaranteed renewable provision, which means that as long as you continue to pay your premiums on time, the company cannot refuse to continue your policy. 3. Whether the policy requires prior hospitalization before you can receive benefits in a nursing home since many people are not hospitalized before entering a nursing home. 4. Whether there are restrictions for coverage for preexisting conditions that may disqualify you.

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5. How many years of coverage are offered. (Premium costs usually increase with each year of coverage provided.) 6. How much money the policy pays per day of hospitalization. 7. What levels of care the policy covers. (Briefly, levels of care include: acute care, skilled nursing care, intermediate care, custodial care, and home care. Not all policies cover all levels of care.) 8. Whether there is an "inflation protection" option to protect your benefits from inflation. It is usually best to avoid policies that are disease-specific, such as "cancer policies," since you may not be covered for any other conditions. Look at several policies to compare not only their premiums but also their benefits and restrictions. Finally, determine your "risk-benefit ratio"—whether it is worthwhile buying a policy to cover possible long-term care needs. The State of Hawai'i Department of Commerce and Consumer Affairs can provide you with valuable information in this area.

6 Protective Services, Elder Abuse, and Neglect

A successful executive was approaching her retirement years with great anticipation. She had always loved to travel. Now, finally, since she had paid off her home and had accumulated a nice nest egg for herself, she would not only have the money to travel, but would also have plenty of time. Plus, she would have a wonderful place to come back to in Hawai'i. While she did not have any family in Hawai'i, she was very independent and made friends easily. However, all her dreams, plans, happiness, and wealth were ultimately destroyed. Through an unfortunate twist of fate, this intelligent and independent woman was struck with a rapidly progressive form of Alzheimer's disease, and she was consequently taken advantage of by strangers—the type who lurk around vulnerable people. After having lost all her money and her home, she was finally rescued from wandering on the streets and now lives in a nursing home paid for by Medicaid. This chapter deals with the unfortunate but increasing population of incapacitated, abused, neglected, and exploited individuals who have not made plans for their own protection or whose plans have failed. In the broadest sense, "protective services" refers to various laws, regulations, legal tools, and practices designed to protect individuals who are unable to protect themselves or to adequately handle their own financial, health care, or other decisions. Protective services, for example, can be brought to bear in a such a dangerous situation as when an individual is being physically abused in a nursing home, or in such a 149

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serious but not necessarily physically dangerous situation as when an aggressive salesperson sells a $2,000 vacuum cleaner to an Alzheimer's patient who lives alone but is about to be placed in a care home. The importance of preventive measures and vigilance in maintaining a protected environment for the elderly and vulnerable needs to be stressed. Governmental agencies such as the Federal Trade Commission, the state Office of Consumer Protection, and police departments continuously warn the general public about scams and crimes directed against people who may be easily persuaded to part with their money or who may be too physically weak to protect themselves. The Long-Term Care Ombudsman, the Attorney General's Office, the Department of Health, and the Department of Human Services monitor and inspect health care and community care facilities to detect and prevent abuse. It is well known that scam artists, including unscrupulous telemarketers, target the elderly. They have a way of persuading people to purchase something they do not need or, even worse, reveal their credit card numbers. It often remains up to individuals, neighbors, friends, and family members to keep an eye out for trouble and to set up mechanisms to reduce the risk of abuse. Adult children may be shocked to discover that their parents are being abused, sometimes by people they have known for years. Over a long weekend, a daughter was visiting her father who lived on a neighbor island. She had been visiting about once a month to check on him since she could tell that he was "slipping" mentally. She usually spent the time shopping for him and cleaning his clothes and his modest home since he often neglected to care for himself. Just before she was scheduled to go to the airport for her trip home, she noticed her father's bank statement in a pile of newspapers. She was shocked to see how many checks had been signed by her father and how many ATM withdrawals had been made in just a month. It turned out that her father had been the victim of nearly every scam that had been targeted against the elderly in the community. Even the neighbor's teenage son had been taking him down to the ATM on a regular basis to "help" the older man get some cash from

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the machine since the gentleman could never remember his PIN number. Of course, the teenager also helped himself to a significant amount of cash. The daughter called for help and was put in contact with several elder network agencies in the community. The father is now receiving meals, chore services, "friendly visitors," and "telephone reassurance" services. Eventually she and her father were able to set up legal mechanisms to manage his affairs and a money management account was established for his finances. The embarrassed neighbors made certain that their son worked off the money he owed the gentleman and no criminal charges were filed. This is an illustration of how individuals can be helped by private protective services.

Protective Services The term "protective services" can also be used to mean statutes that provide protection to the public and impose mandatory reporting, investigating, and intervening requirements to deal with cases of suspected abuse. Protective services can apply to individuals in the community or in institutions such as nursing homes. Each state has its own laws, court proceedings, and practices concerning protective services. Federal laws govern certain aspects of protection, including funding direct services and training under the Older Americans Act and establishing representative payeeship programs such as those found in the Social Security, the Veterans' Administration, and the Railroad Retirement systems. Parens Patriae As discussed in the first chapter, in exercising its parens patriae (Latin for "parent of the country") powers the state has the authority to intervene or to place limitations on the rights and autonomy of an individual who is considered to be incapable of caring for his or her own needs. Typically, state intervention under these circumstances involves persons who are determined to be legally incapacitated. While there is a general presumption of legal capacity, when an individual can no longer make

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decisions necessary to manage personal affairs or property, someone else may have to be appointed to make those decisions. This is usually accomplished through the guardianship or civil commitment process.

Private Interventions As stated previously, the role of private interventions is often overlooked. In addition to the practical measures families and friends can take to protect vulnerable adults, families can sue in court for civil fraud or wrongful acts that caused injury or harm to the person. Suits against fiduciaries (those who owe a duty to protect or properly manage assets), nursing homes, and even governmental agencies for abuse or failure to adequately protect individuals from abuse play a role in fighting the problem of abuse. In the area of protective services, there are various laws that allow intervention in or response to abusive situations. Penal codes prohibit certain criminal acts of abuse. In criminal cases, the police departments, prosecutors' offices (federal and local), and criminal courts are involved in seeking justice on behalf of victims. Direct abuse laws such as dependent adult protective services statutes or domestic violence protection acts allow court orders to initiate protective actions or to prohibit abusive action on the part of others. Sometimes both civil and criminal remedies can be pursued. Various agencies and organizations are involved in providing protective services. Often they work collaboratively to provide protective services. Sometimes only one agency or organization will have the authority or capability to assist. Other times, unfortunately, nobody can help.

Protective Services in the Absence of Proper Planning Frailty, illness, extreme old age, fear, and language barriers are just a few of the reasons some elders are unable to manage their own affairs or become the victims of abuse, neglect, or exploitation. Many elders need someone to take care of them. Yet, sadly, many have no one to turn to for help. It is a shame, but some older persons are being abused, neglected, or exploited, not by

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strangers, but by families, acquaintances, and even those that they had hired to help them.

Guardianship There are certain legal interventions that can help avoid or combat abuse. Guardianship is a legal relationship in which one person (usually called a "guardian") is appointed by a court as a substitute decision-maker (sometimes called the "surrogate") for another individual (usually called the "ward" or "protected person"). Historically, guardianships have provided care for those who are unable to care for themselves or their financial affairs. Prior to appointment of a guardian, there must be a declaration by a court that the proposed ward is incompetent or incapacitated. Guardianship is a very restrictive means of protection. In this type of court action, the "ward" often is relegated to the same status as a child while the guardian becomes, for legal purposes, the equivalent of the parent. Normally, less restrictive alternatives must be considered before the court will order a guardianship. There are two types of guardianship, usually under the jurisdiction of different courts and each with different judges and different procedures. Guardianship of the Person—Family Court

An incapacitated person or any person interested in his or her welfare may petition the family court for a finding of incapacity and appointment of a guardian "of the person." A guardian of the person has virtually the same powers, rights, and duties respecting a ward that a parent has respecting a minor child. In a nutshell, a guardian of the person takes care of all of the matters pertaining to a person's care, comfort, and maintenance. As you will see, a guardian of the property usually takes care of most property matters. The person alleged to be incapacitated may be examined by a physician or licensed psychologist appointed by the court who will submit a report in writing to the court and may be interviewed by a family court officer or other person designated by the family court. The court may appoint a guardian "ad litem"

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for an incompetent person to represent his or her interests in a proceeding. Guardianship of the Property—Circuit Court Guardianship of the property may be necessary whenever a person for any reason cannot effectively handle his or her own financial affairs. Typically, guardians of the property are appointed by the probate court for minors and persons incapacitated by mental or physical illness or by age. Unless the person to be protected has chosen competent counsel, the court will appoint an appropriate official or attorney to represent the person, who will have the powers and duties of a guardian ad litem. The court may also direct that the person to be protected be examined by a physician or psychologist. Kokua

Kanawai

In addition to a guardian ad litem, a Kokua Kanawai appointed by the circuit court in a protective proceeding can serve as an extension of the court to conduct an independent review of the situation, to interview the protected person and the person seeking to be appointed guardian, and to report its findings and recommendations to the court. Small Guardianships—Estates Less Than $ 8 , 0 0 0 When the value of all of the protected person's or ward's assets (his or her estate) is less than $8,000 (an amount subject to change), the clerk of the circuit court acts as guardian of the property and is responsible for all actions. Office of the Public Guardian The public guardian serves as guardian of the person of an incapacitated person after appointment by the family court. The public guardian may file a petition for the public guardian's own appointment. Petitions for public guardianship may also be filed by any person, agency, or facility responsible for support or care

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of individuals who (1) are unable to understand or to adequately participate in decisions concerning their care; and (2) have no relatives or friends willing and able to act as guardian. The Office of the Public Guardian is established within the judiciary branch. The chief justice selects the official who acts as public guardian. The public guardian acts as guardian of the person with the same duties and responsibilities as a private guardian of the person. While serving as guardian of the person, its duties and responsibilities can be limited to certain matters and can be temporary. It also assists the family court in guardianship of the person proceedings and in supervising persons, corporations, or agencies that have been appointed guardians of the person. Civil Commitment Sometimes a person who is being abused or who is not caring for himself or herself may be suffering from a mental illness. A mentally ill person can enter a private or a state institution for care and treatment voluntarily or involuntarily. The court may commit the individual as a means of protecting that individual or the community. The law provides that a police officer may take into custody and transport to any facility designated by the director any person threatening or attempting suicide. "The officer shall make application for the examination, observation, and diagnosis of the person in custody. The application shall state or shall be accompanied by a statement of the circumstances under which the person was taken into custody and the reasons therefore which shall be transmitted with the person to some physician at the facility." The law further provides that any licensed physician who has examined a person and has reason to believe that person is (1) mentally ill or suffering from substance abuse, (2) is imminently dangerous to self or others or is obviously ill, or (3) is in need of care or treatment, may direct transportation, by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization and may administer such treatment as is medically necessary for that person's safe transportation.

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The Hawai'i Revised Statutes provide that a person may be committed to a psychiatric facility for involuntary hospitalization if the court finds: 1. That the person is mentally ill or suffering from substance abuse; 2. That the person is imminently dangerous to self or others, is gravely disabled, or is obviously ill; and 3. That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs that would be less restrictive than hospitalization. Standards and procedures for emergency examination and hospitalization, whether voluntary or involuntary, are also provided under the law. In 1997, the Hawai'i state legislature called on the Department of Health to establish a "mental health statutes task force" to make recommendations for the improvement of the involuntary commitment and treatment laws.

Medical Treatment Decisions for Psychotic Disorders The laws of the State of Hawai'i recognize the right of an individual suffering from a psychotic condition to make a written declaration instructing his or her physician to provide medical treatment, including the administration of psychotropic drugs (drugs that help the person with a psychotic condition). Some have called this a "living will" for psychotic disorders since it permits a person in a state of remission to give written permission for treatment in the event the person has "lapsed and is not able to make decisions regarding medical treatment." This document is one of the numerous advance medical directives described previously.

Elder and Dependent Adult Abuse and Neglect Elder Abuse Elder abuse has been described as "a hidden epidemic" in our society. Many elders are at risk of financial exploitation or phys-

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ical abuse by family members or caregivers. Some suffer from severe physical disability or perhaps dementia, and their lives can be damaged or even lost because they are unable to fend for themselves. Many victims live with family members who provide some care. Many choose to stay in an abusive situation because they have no one else to live with or do not want to be uprooted and placed in a strange place. Abuse may also occur in an institution such as a hospital, nursing home, or care home. Along with laws and service delivery systems, compassion, attention, and knowledge are important in dealing with the increasing problem of elder abuse. Defining Elder and Dependent Adult Abuse

It is critical that persons who work with the elderly understand basic concepts of abuse and are familiar with signs of abuse. Further, Hawai'i's Dependent Adult Protective Services Act mandates certain health care providers and others to report suspected cases of abuse. Just as important, recognizing abuse can help in its eradication and prevention. First of all, it is important to define what is meant by "dependent" under Hawai'i's law since an individual cannot be involuntarily subjected to the provisions of the law based solely on age. A "dependent adult" means any adult who, because of mental or physical impairment, is dependent on another person, a care organization, or a care facility for personal health safety or welfare. Second, it is essential to know what constitutes abuse. Under the law, "abuse" means actual or imminent physical injury, psychological abuse or neglect, sexual abuse, financial exploitation, negligent treatment, or maltreatment, and is further defined within the Dependent Adult Protective Services statute. Abuse may have many meanings to different people. Overall, there are many possible areas of abuse involving the elderly: 1. Physical abuse is inflicting physical pain or injury on another person. 2. Sexual abuse is touching, fondling, or any other sexual activity (including involvement in incest, pornography, or exploitation) with an adult when he or she is unable to

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3.

4.

5.

6.

7. 8.

understand, unwilling to consent, threatened, or physically forced. Psychological or mental or emotional abuse is verbal assaults, threats of abuse, harassment, or intimidation that force an adult to do things that he or she has a right not to do, or socially isolating a person. Financial abuse or exploitation is the misuse or withholding of an older adult's resources. Financial abuse can occur through direct action or indirectly through the use of legal instruments such as a power of attorney. Caregiver neglect or deprivation is the caregiver's failure to provide an older adult with life's necessities, including, but not limited to, food, clothing, shelter, or medical care or denial of medication, medical care, shelter, food, or other physical assistance. Inappropriate caregiver behaviors are instances such as when a caregiver does not allow the older person to speak for himself or herself without the caregiver being present or blames the client for incontinence. Improper confinement is restraining or isolating a person for reasons other than medical ones. Self-neglect is a person's own active or passive infliction of harm on himself or herself.

Signs of Physical Abuse and Neglect Some signs of physical abuse and neglect may include the following: • unusual or unexplained injuries, including fractures, burns, bruises, signs of confinement, poor hygiene, or dehydration • unusual behavior such as fear, withdrawal, depression, hesitation to talk openly, agitation, or anxiety, or contradictory statements not due to mental dysfunction Signs of Psychological Abuse and Neglect Psychological abuse and neglect may be very difficult to detect but, for many older persons, it is their most important concern and is just as serious as other types of abuse. Elders deserve respect, not abuse, and the damage caused by psychological abuse

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can be more long-lasting than that of physical abuse. Psychological abuse and neglect may take the form of threats of injury or death or cursing or social isolation. Some signs may include: • apathy, fear, hopelessness, resignation, loss of appetite, weight loss, or incontinence • behavior such as withdrawal, depression, agitation, or acting out to get attention • lack of awareness of time or date Signs of Financial Exploitation Some signs of financial abuse may include the following: • unusual transactions in bank accounts, such as large withdrawals • inappropriate banking behavior, such as the use of ATM machines when the older adult is homebound • abusive use of a power of attorney or obtaining a power of attorney when the older adult cannot comprehend what he or she is doing • refusal to spend money to care for the elder, such as not paying bills or not providing amenities like a TV, personal grooming items, or clothing • recent transfers of property, will executions, overcharging for services, or promises of friendship or care in exchange for bank accounts or deeds • any other signs that an elder's resources are misused or mismanaged, especially if the elder appears to lack knowledge about his or her own finances Causes of Abuse There are many causes of abuse. Many incidents can be attributed to family members who try to care for an ill or incapacitated elder but lack the necessary resources or skills. The stress of caring for an ill person twenty-four hours a day can cause family members to become abusive. Ongoing domestic violence can cause the victim of abuse to be more vulnerable to injury because he or she may not have the same resilience or healing capability as a younger person. Another cause of abuse may be the

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dysfunctional abuser who has a substance abuse problem or who is financially dependent on the victim. An older person's loneliness or isolation may also make him or her especially vulnerable to exploitation by paid caregivers. Issues of self-neglect, mental illness, and incapacity also may need to be addressed, especially if capacity is questionable. Self-Neglect Some people may be involuntarily forced into or deliberately choose lifestyles that may seem strange or even disgusting to the "typical" member of the community. Others may exhibit unusual behavior due to a mental illness. Still others may appear to change their lifestyles or behaviors as a result of the "aging process." Sometimes a person's habits or behavior will seem to be offensive only to others and not particularly harmful to the individual. Sometimes people reach a stage where they appear to be causing harm to themselves, and others feel they need protection. The concepts of voluntary and involuntary civil commitment for individuals who are imminently dangerous to self or others or who are considered "gravely disabled" or "obviously ill" have been discussed previously. Deciding whether to intervene in a person's life due to eccentricity or self-neglect is filled with all kinds of legal, ethical, and practical considerations. Issues of statutory limitations on intervention, civil rights, autonomy, and self-determination very often limit the ability of concerned individuals and agencies to intervene. Sometimes the only recourse is to offer services and to attempt to "gently persuade" individuals to accept help and perhaps change their lifestyle. Older Abused Women Over the years a disconcerting phenomenon has emerged in Hawai'i and throughout the United States—a large percentage of older women are abused. The fact that women generally live longer than men is only one possible cause of this abuse. Issues of gender bias, cultural attitudes, learned behavior, economic inequality, power and control, vulnerability, exploitation, and op-

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pression also must be considered. Abused older women face barriers to resolving both institutional and domestic/community violence and other forms of abuse. In Hawai'i several organizations, including Students and Advocates for Victims of Domestic Violence (SAVD), the Women's Resource Center, and CSI (Comfort, Security and Independence), have developed a keen sensitivity to the problems of abuse of older women.

Domestic Violence Domestic violence occurs when one family or household member physically, sexually, or psychologically abuses another member. Any perpetrator of domestic violence is breaking the law. There are several legal options and services available specifically for victims of abuse by a family or household member. There may or may not be a caregiver relationship involved, but if the abused individual is dependent on another, additional resources may be available through adult protective services programs. In the past, efforts to combat domestic violence have often centered around protecting partners /spouses, especially mothers and their minor children. Fewer resources were devoted to protecting mothers or grandmothers of adult children. The police department on each of the islands, the Domestic Violence Clearinghouse and Legal Hotline, SAVD, and the Adult Protective Services are some of the agencies that provide assistance to persons, including older men and women, who are victims of domestic violence.

Hawaii's Dependent Adult Protective Service Program The Dependent Adult Protective Services Law requires the Department of Human Services to investigate reports of suspected dependent adult abuse. Dependent adults, generally speaking, are individuals who are over the age of eighteen and who are dependent on another to provide them with caregiving or other assistance in living. Dependent adults may live in the community, be residents of care homes or nursing homes, or be patients in a hospital. The family court has overall jurisdiction over the act

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and broad authority to order protective services for dependent adults in order to stop present abuse and prevent future abuse. The department and the court may act only with the consent of a capacitated adult. However, if the court determines that the adult lacks capacity, the court may permit intervention. There are many professionals who are required to report suspected cases of abuse to the Department of Human Services. Doctors, nurses, social workers, and numerous others are "mandated reporters." Anybody, however, can make a report to Adult Protective Services, which is a special unit under the Social Services Department of Human Services. Reports are confidential and can be made anonymously. Adult Protective Services provides the following services to victims of abuse: 1. Intake and investigation of reports of abuse. This is a screening process to determine if there is reasonable cause to suspect dependent adult abuse or neglect and the urgency of the situation. Under Hawai'i law, Adult Protective Services has the authority to gain access to the victim of alleged abuse and may call on law enforcement officials to assist in gaining this access. 2. Assessment of the case. This is a systematic response to reports of abuse that Adult Protective Services investigates and an analysis of such matters as whether abuse has occurred and is likely to happen again, whether the abuse fits the criteria of the law and whether the victims of any abuse have the mental capacity to make their own decisions. 3. Intervention and case work. This includes working with the elderly to stabilize the situation and reduce the risk of further harm. It may include arranging for home or health care, chore services, nutrition services, adult day care, respite care for the caregiver, financial or legal assistance, and projections such as immediate orders of protection or other court actions. It also includes follow-up services to ensure that abuse does not reoccur. Remember that while there are certain people who must report suspected cases of dependent adult abuse, anybody can call

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Adult Protective Services to make a report. Even if no abuse is detected, the Department of Human Services may find that there may be some services that they can offer to make life easier for a person who may need some assistance.

Nursing Home Residents' Rights and Quality of Life Even though Congress enacted a Nursing Home Reform Law that established a new set of quality of care, patient's rights, and quality of life regulations, the quality of life in nursing homes continues to be an issue. If you are considering a particular nursing home for a loved one or for yourself, you should visit it to make sure you know how it looks, "sounds," and "smells." Signs of neglect in a nursing home can include bedsores in a significant number of residents, unanswered call bells, overuse or improper use of restraints, and lack of help in using the bathroom. To get a better idea about the nursing home, you can ask for its history of compliance with State of Hawai'i and the federal Health Care Financing Administration's (HCFA) standards. You have the right to request to see the HCFA "survey" reports and complaint reports. Ask for the actual reports, not summaries prepared by the facility. If you cannot get the reports, call the Department of Health or the Long-Term Care Ombudsman for information about reporting requirements. The Nursing Home Reform Law requires that nursing facilities promote and protect the rights of each resident. This law requires each nursing facility to maintain and enhance the quality of life for each resident. Emphasis is placed on dignity, choice, and self-determination for nursing home residents. The law requires each nursing facility to provide services and activities that focus on the physical, mental, and psychological well-being of each resident in accordance with a written plan of care. This plan is initially prepared in consultation with the resident or the resident's family or legal representative. The law also makes resident and advocate participation a criterion for assessing a facility's compliance with administration requirements. The law provides a comprehensive treatment of the following particular rights:

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• • • • • • • • •

rights to information self-determination personal and privacy rights visiting rights transfer and discharge rights protection of personal funds protection against Medicaid discrimination abuse and restraint rights rights of incompetent residents

If you have questions concerning the rights of an individual in a long-term care facility or if you suspect that these rights are not being observed, call the Long-Term Care Ombudsman who, in the State of Hawai'i, is located in the Executive Office on Aging, Office of the Governor. If you suspect abuse in a nursing home, you may, of course, also call Adult Protective Services. The Department of the Attorney General also has a Medicaid Investigations Unit, which investigates abuse in facilities receiving Medicaid reimbursement (the major means of payment at most nursing homes). Dumping Dumping patients continues to be a very troubling area of abuse of the elderly and other needy people. There are some laws that regulate "dumping" people who need acute care services. For example the federal Emergency Medical Treatment and Labor Act limits the ability of hospital emergency rooms to transfer patients, particularly those who lack health insurance, to other hospitals. But dumping may express itself in less obvious forms. I often get calls from family members or friends of individuals who are in hospitals but may no longer need acute care and the hospital is trying to discharge them, often without an effective discharge plan. Hospitals are under pressure to discharge patients who are not at the level of care necessary to justify hospitalization, but they must still comply with such requirements as, for example, found in Medicare Discharge Planning Regulations. As caregivers they must also, of course, refrain from abusing

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those in their care. I am certain that dumping is not a major problem but still, unfortunately, I am sometimes criticized by social workers in health care facilities for providing too much information to patients and their families about their rights. On the other hand, some social workers will call me "anonymously" to ask for help or to tell me about a situation. The health care facility staff will sometimes try to convince a patient to leave the hospital voluntarily or may place enormous pressure on family or friends to take the patient home even if they do not have the capability of doing so. Some families tell me that social workers have gone to the extent of telling them that they will put the patient in a taxi the next day and have the patient dropped off at his or her home or at the home of a family member or friend. What the health care providers do not tell the patient or the family is that, "if push comes to shove," they cannot just dump the patient into the community if the patient is at risk of harm. They also do not tell families that, except for husbands and wives, there is generally no legal obligation of one adult to care for or to pay for the care of another adult even if they are related. For example, an adult child does not have any legal obligation to support a parent, nor does a parent have any legal obligation to support an adult child. An obligation may be enforceable, however, if a person agrees to take on the responsibility, especially if the person signs papers accepting responsibility. In most instances, if the patient and the family or friends "just say no," the health care facility will not discharge the patient until a safe alternative discharge plan can be formulated. You can work with the patient and health care facility toward an appropriate resolution and you can keep visiting the patient, but you do not necessarily have to accept any legal responsibility. If you are truly worried that a patient will be dumped, call Adult Protective Services for advice.

7 Surviving Death and Dying

This chapter looks at issues confronting both the individual who is facing death and the people he or she will leave behind. They can all be survivors of the ordeal of dying and death. Many books have been written about the emotional stages that the dying and their survivors go through when confronted with death. Denial, anger, bargaining, depression, and acceptance are mentioned as stages that a person experiences as a way of dealing with the fear and anxiety associated with dying. Counselors say that a person usually goes through each of these emotional stages in some degree before a resolution is made and a person is able to return to a somewhat normal life. Although dying is a process that you must undergo by yourself in physical terms, you do not need to die alone. Family and friends can visit you frequently at home, or in the hospital, or in a hospice. Most hospitals and other health care institutions now have flexible visiting hours after families and friends challenged rules and regulations that barred them from visiting except during posted hours. Use of such legal documents as the durable power of attorney for health care can be especially helpful in this area. Although it may be difficult at first, take some time to discuss medical treatment, heroic measures, life-support systems, and what happens when you can no longer make medical decisions. Then go about setting in place legal tools that can help make the situation at least more manageable.

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If you or a loved one is in great pain, talk to the doctor to see how pain can be controlled through medication or other medical intervention. Many health care organizations have pain management teams to help patients and their doctors determine what pain control measures may work best. Drug therapy is administered to relieve suffering and each person has his or her own tolerance level. Speak to the doctor if you suspect that the drug dosage may not be appropriate. The purpose of medication in the case of a terminal condition, after all, is to make a patient's life as comfortable as possible or to make his or her death as serene as possible. There may come a time when heroic measures may be needed to prolong your life. This may or may not be what you wanted and may or may not even necessarily be in your best interest. You may wish to talk to the doctor about not using a respirator, not being resuscitated, leaving off other life-support systems, or withholding life-sustaining medical treatment. Talk to your doctor about the consequences of your decisions. For example, if you would want to have a respirator removed if you are in a certain condition or after a certain period of time, you should discuss how medication can be provided to help wean you off the respirator and prevent you from gagging or gasping for air. Remember, the living will and other advance medical directives previously discussed in this book can help patients carry out their wishes to die with dignity when they feel it is time.

"Self-Deliverance" There has been much attention focused on the actions of certain physicians and others who have assisted people in their dying. The legal and conceptual issues of euthanasia and assisted suicide are discussed in chapter 4 and in the appendix entitled "Euthanasia, the 'Slippery Slope,' and the Courts." Many people fear that the end of their lives may be painful or degrading, or that they will become too much of a financial or emotional burden on family or friends, or that they will lose control and become too dependent on others. Self-determination, quality of life, and personal dignity are very important issues in a person's living and

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dying. Depression and mental disorders, of course, often play a significant role in decisions to end one's life. Some notorious doctors have developed "suicide machines" and numerous groups have been formed to provide people with information about assistance in dying. There have been several books published, including "do-it-yourself" and "cookbooks" for dying, which graphically detail ways to end a life. Studies have shown, however, that the percentage of people who actually follow through with this most difficult decision to end their lives is actually very small. Furthermore, most physicians will not participate in actions that will actively lead to a patient's death. Most people choose to seek remedies other than self-deliverance to deal with their grave situations. These responses include pain management and hospice care, spiritual and psychological counseling, and family and community support services. Talking about one's fears and concerns with health care professionals, spiritual advisors, family members, and friends can resolve many issues. Many families and friends are shocked, distressed, depressed, and even angered when a loved one commits suicide but never confided his or her intentions to them. On the other hand, while they may deeply mourn the death of a loved one, some families and friends accept and understand the actions that the person took to relieve his or her suffering. Even though self-deliverance is a personal choice, a person should know that this choice will most likely have a traumatic effect on others. Counselors suggest that the person who is thinking about selfdeliverance may want to consider the consequences of these actions on his or her own life and also on those people he or she leaves behind. Most experts agree that modern approaches and techniques for caring for people who are terminally ill or in other "hopeless" conditions offer them clear alternatives to self-deliverance. Information about alternatives such as hospice care and effective pain control techniques should provide greater assurance that death can come painlessly and serenely. Health care professionals, spiritual advisors, counselors, families, and friends can provide much comfort and assistance to individuals who are facing end-of-life decisions.

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The Dying Process The definition of death was presented in chapter 4, but it may be helpful to discuss the dying process itself. When a person is in the final stages of dying, there are usually two interrelated dynamics involved. There is the a physical "plane," and there is a mental/emotional/spiritual plane. On the physical side, the body begins to shut down and all bodily functions eventually cease. On the mental/emotional/spiritual side, the person begins to release his or her "spirit" from the immediate environment of his or her body and worldly attachments. The two planes may or may not be in synchronization. For example, the dying person may have unresolved or unreconciled issues in his or life and cannot "let go" even though the body is prepared. On the other hand, a person may be ready to be released from this life but the body has not completed the final shutdown. Hospices are especially adept at helping people deal with the final dying process. Signs and Symptoms of Dying The body often exhibits certain signs that a person is in the final stages of life. Physical signs include coolness of the extremities and change in skin color, congestion and gurgling sounds from the chest, urine decrease and the loss of control of urinary and bowel functions, disorientation and confusion, restlessness and repetitive motions, decrease in appetite and thirst, and change in breathing patterns and periods of no breathing. At death, the jaw relaxes and the mouth gapes open, the eyes will be open with enlarged pupils, and there is no heartbeat. Eventually, the body becomes cold and rigid. Mental/emotional/spiritual signs include unresponsiveness and withdrawal, unusual visual experiences and communication, restlessness and repetitiveness, decreased socialization and limiting one's inner circle of support, and decrease of appetite and thirst. Understanding that the phenomena experienced during the dying process are natural can help family members and friends

Surviving Death and Dying • 171 cope with the situation. For example, knowing that it is common for dying people to "see" people or things that others cannot see, or to spontaneously utter strange words or phrases, or even to think that they are in a different country or time can help prepare survivors for the situation so that they will not argue, contradict, or try to explain away the situation. Understanding that it is common for a dying person to be confused about the identity of people or to ask one or two family members to stay but everybody else, including the closest of family and friends, to "go away" can help survivors deal with the situation and not feel hurt. The dying person may be disoriented and confused, and, accordingly, at risk. The ability to talk softly, clearly, and truthfully when you need to communicate something of importance can be key at the end of a person's life. This can be helpful in getting the patient to take his or her medication, for example, but the dying person must be protected from those who would manipulate him or her into doing something to meet somebody else's desires. This is why "deathbed" wills and other legal documents can be so dangerous. The issues of capacity as discussed in the first chapter are very important to keep in mind. Also, an attorney who cares for the dying must strictly adhere to his or her ethical responsibilities.

Hospice Care You may have to make the difficult decision about where you or a loved one should die—at home, in a hospital, or in a hospice. Caring for a person, making sure he or she has comfort care, and dealing with the signs and symptoms of death and dying, may be too much for a person or family to handle on their own. More people are choosing hospice care, which can be either homebased or residential-based. Hospice philosophy is based on the belief that death is a part of life and concentrates on relief from pain and support for the individual's emotional and spiritual needs. Hospice often permits an individual to meet his or her life's end in a more peaceful manner than might otherwise be possible. As mentioned in chapter 5, most hospice care is covered

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completely by insurance or Medicare or Medicaid. Hospice workers and volunteers are trained to help the dying person, relatives, and friends prepare for the death process as well as the actual moment of death. Hospice workers and volunteers can help with the sad but appropriate way to say "goodbye" and help people achieve closure and make the final release possible. The death of the hospice patient is not considered an "emergency," and the body does not have to be moved until the family and friends are ready The hospice program can also provide immediate emotional support for the survivors.

Steps to Take upon Death No matter where the death occurs, the survivors will have to make the following decisions: • • • •

whom to notify what to do with the body what type of ceremony, if any, to have what services and merchandise to purchase

If the death has occurred in a hospice, the hospice workers and volunteers can help guide the survivors. If the death has occurred in another type of health care facility, appropriate procedures, including governmental agency notification, will already be in place. If the death has occurred at home (and the patient is not in a hospice program) or at some other location, the police may need to be notified, especially if the death was unattended or unexpected. If the death was expected and the individual was being attended by a physician, the physician can tell the survivors what to do. Typically, prearrangements will have been made and the survivors will call a funeral home or mortuary to take the body. When the death was expected, you may not want to notify anyone or do anything right away until you are ready. Instead, you may want to hold or touch your loved one or just sit with him or her or pray or cry or say goodbye. You may want to call other family members or a spiritual advisor to join you before

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the body is taken away. Whether you are in a hospital or at home with your loved one when he or she dies, you do not necessarily have to call a doctor or a nurse or the coroner or the funeral home right away. It may be more important to take the time you need with your loved one. Once your loved one is declared dead, the funeral home can be called to take the body and the appropriate paperwork and preparations for burial or cremation can commence. If you are a survivor who will be taking charge of making decisions, you may want to notify relatives, close friends, and business associates, and arrange for funeral or memorial services. If the deceased or his or her spouse is a veteran and they wish to take advantage of veterans' death benefits, including burial benefits, be sure to contact the Department of Veterans' Affairs.

Disposition of the Body When a nursing home, hospital, doctor, or police officer notifies the survivor that a death has occurred, the survivor is urged to contact a funeral director to make arrangements for the disposition of the body. Problems have occurred when two parties have different opinions about who should be in charge of disposing the body or what should be done with the body. Hospitals will generally release the body to the next of kin or a family member, such as the spouse, reciprocal beneficiary, or close family member. Sometimes, if there is no legal next of kin, funeral homes will not honor the wishes of the unrelated party. Funeral homes will generally follow the directions of the next of kin unless another party is specified. To avoid conflicts in an emotionally charged time, it is best to put into writing your choice as to who will make decisions regarding the disposal of the body. This can be done in a will and expanded in a letter to the personal representative. Sometimes the directions contained in a power of attorney can be followed, depending on the language contained in the document and the jurisdiction involved. To avoid any problems, of course, prior planning and documentation are helpful.

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Funerals and Memorials Funerals or memorials can be very simple or very elaborate. Of course, preplanning, which includes a prechosen funeral director and prepaid services, would be helpful in most situations. Many people choose to belong to a memorial society, which is a nonprofit organization dedicated to achieving dignity, simplicity, and economy through preplanning. If you are a veteran, ask the Department of Veterans' Affairs for advice concerning advance funeral and memorial arrangements. If you are receiving public assistance, you should also know that the state may pay for certain expenses relating to the disposition of your body. Your plan, accordingly, may be as simple as letting your survivors know they should call the Department of Human Services for assistance upon your death. Talk to your social worker about this, if you have one.

People Who Prey on the Dead Emotions can often be very charged, especially when a loved one has died suddenly and unexpectedly. During the time just before and after death, a survivor may be especially vulnerable to people who make their living by selling goods and services to terminally ill persons and families and friends of deceased persons. They often use guilt to persuade the survivors that they should "get the best" for the deceased if they really loved him or her. The deceased may not have wanted his or her survivors to spend so much. This is why making your own arrangements is important, especially if you feel your survivors could be pressured to spend money for goods or services that are not needed or they cannot afford. There are also persons who take advantage of a family's vulnerable situation. One example is the case of a criminal who might read the funeral notices in the newspaper and rob the house of the deceased during the funeral ceremony. Others may "join in" with the crowd of people at a home where the wake or gathering takes place and steal silverware or other valuables. Be alert and be cautious.

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The Funeral Rule As a consumer you should know that funeral-related options are often the third biggest expense item in a person's life after the purchase of a home and an automobile. When you consider that funeral-related decisions are usually made in just a few hours, you can see why people are sometimes exploited. The Federal Trade Commission regulates the sale of merchandise and services related to the funeral and memorial industry. Its so-called Funeral Rule, however, applies only to establishments that sell both funeral goods and services and does not usually apply to cemeteries. The funeral rule: • requires funeral homes to provide accurate and itemized price information • prohibits funeral homes from embalming for a fee without permission • prohibits funeral homes from requiring the purchase of a casket in the case of direct cremation • prohibits funeral homes from requiring that certain funeral goods and services be purchased as a condition for purchasing other goods and services • prohibits funeral homes from engaging in other deceptive or unfair practices If prearrangements have not been made, you, as the survivor, may want someone who is not as emotionally involved as you are to help you make some practical business decisions, such as the cost of the funeral, casket, cremation, or other services. Many services are not required by law, and you may well be paying for more than you need or can afford. You, or someone helping you, can call a familiar local funeral home or price-shop by phone. Like any other business, funeral homes offer all types of products and services at a variety of costs.

Funeral and Memorial Plans and Services You should follow good business practices as a consumer in getting the contract for services in writing, knowing what you are

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paying for, knowing which services are not necessary, and seeing that all these services are performed as agreed. Beware of such practices as substitution of one casket for another, or charging for services not needed such as thank you cards if you are providing your own, or a flower car if there are no flowers, pall bearers who were not requested, or clothing for the deceased that you are providing. Questions as to whether or where to bury and where to hold the services often determine the ultimate funeral or memorial arrangements. Plans are often made according to the prescribed religious funeral or memorial rites of the deceased. The funeral director, minister, priest, rabbi, or spiritual advisor can help with the plans. Funeral plans can include burial, entombment, or cremation. Embalming is a method of preserving the body for open-casket viewing. This is not required by law and may be especially unnecessary if the body is to be cremated. Scattering of ashes can be accomplished informally or can involve an elaborate ceremony. While, generally speaking, there is little regulation of scattering of ashes in Hawai'i, health ordinances may be different in some jurisdictions. The funeral home or mortuary may be able to provide you with information about scattering of ashes, but they may try to discourage this practice, even if it is legal, if they have their own plan for disposition of the ashes that they may wish to sell. Memorial services differ from funeral services. Traditionally, funeral services are held in the presence of the body and may include a viewing. Memorial services are held without the body and are usually less costly. Often, memorial services are held when friends and family cannot immediately meet after a death. Other things to consider for a funeral or memorial are the music, the eulogy, the gathering place, food, readings, obituaries, and pall bearers or attendants. Of course, the more services that are rendered, the more expensive the memorial or funeral. Be prepared to address the following issues, each with a price tag often starting at hundreds of dollars.

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• Will the remains be received from or forwarded to another funeral home? • What are the basic services of the funeral director, staff, and "overhead"? • Will there be an embalming, direct cremation, or burial? • Will there be other preparations of the body, such as reconstructing, washing, disinfecting, hair styling, cosmetesising, dressing, casketing, refrigerating, and holding the body for a number of days? • Will the facilities and staff be used for viewing? • Will the facilities and staff be used for funeral or memorial services? • Will the facilities, staff, and equipment be used for graveside services? • Will a hearse and limousines be used? • Will a burial plot or tomb be needed? • Will there be cemetery charges? • Will caskets, urns, or other burial containers be used? • Will outer burial containers be used if placing the remains in the ground? • Will there be a grave marker? • Will there be flowers? • Will funeral notices be published? • Will permission be required to scatter ashes in a particular place?

Making Your Own Preparations In addition to taking into consideration the issues set forth above, there are some additional considerations you may wish to address, especially if you are planning to buy a funeral plot for your own use: • Who owns the cemetery, and are there any restrictions on who can be buried there? • Is the cemetery well maintained, and is maintenance included in the price of a plot?

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• How many individuals may use a single plot? If multiple use is permitted, do the individuals have to be related? • Can you change your mind and get a refund or even resell the plot?

Prepayment Plan Pitfalls While preparing for funeral services and associated products is wise, be very cautious about paying in advance (prepayment plans), especially if you do not know the company you are dealing with. While most well-established funeral industry entities are trustworthy, there have been many reports of businesses that have mismanaged or stolen funds. Also, when mortuaries or funeral homes go out of business, the fees you prepaid may be completely lost. You may also find that your monies are nonrefundable if you move to another location and do not need the services of that particular plan or if for some other reason you want your money back. You have various options in addition to prepayment plans. For example, you can purchase a term life insurance policy, which can pay out benefits for your funeral or memorial plans. You can also set aside your own funds and earmark them to pay for services in the future. If you do choose either of these options, make sure the proceeds are available or that the account is accessible to somebody upon your death!

Using and Closing Out Bank Accounts Of immediate financial concern to many who have a joint account or safe-deposit box is whether the survivor will have access to the account. Usually the bank will not freeze your assets if they are in a joint account. Since each financial institution's policies differ, check with them ahead of time. Not only can joint accounts be used prior to and after a death, but they can be easier to "close out" than one that is not jointly held with rights of

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survivorship. Also recall that joint accounts can be useful tools in estate planning to give survivors immediate access to funds upon death. To close out an account that was in the deceased's name only, you will need a death certificate and, depending on the amount in the account, an affidavit or letters from the court naming you as the personal representative of his or her estate. Basically this now involves simplified procedures under the new probate code (which will be discussed in the following chapter).

Obituaries To assist their survivors, many people write their own obituaries. This helps provide accuracy and completeness to the notices published in the newspaper. It may also be a way that a person comes to accept of his or her mortality. Of course, for privacy reasons, some people do not want to have an obituary published. Also, many people do not realize that obituaries printed at the request of the family, friends, or funeral home usually cost money. Depending on the length of the obituary, the cost can be several hundred dollars. If you are famous, you may be lucky enough to have your obituary written up as a newspaper article.

The Grieving Process Death is always hard for those who are left behind. When a loved one dies, the grieving process may last a year before the healing process begins. Each season—spring, summer, autumn, and winter—brings different memories of times shared, sounds and smells and tastes enjoyed, routines followed, and special occasions anticipated. Holidays, birthdays, and anniversaries can be painful. On these festive occasions, you should do what feels best. If you feel like joining the family for the festivities, do so. If you change your mind and wish to leave in the middle of the gathering, it is alright.

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You may continue to feel the presence of your loved one in little ways. You smell his shaving lotion or her perfume and think that he or she is near. You hear a car door slam; you hear footsteps; you think he or she is there. Evenings and nights are long. Sunday nights may be the longest. Many who are bereaved are hurt when close friends and family do not talk about their loved one who has died. Let your family and friends know that if it is okay to talk about him or her, about the circumstances of his or her death. If you do say that it is okay, then let them know that when they do talk about him or her, it is also okay if you cry. For those who are the comforters, it is usually okay to say, "It must be lonesome, now that Emmy is gone or Bill has passed away." "I was just thinking about you and Bill." "Let's have dinner together." It is also normal to grieve even before the death of a loved one. This anticipation of death can help you cope with your loss and adjust to death when it happens.

Support Groups and Counseling Services Some signs of not healing and signals to get help are weight loss or gain, sleeplessness, severe depression, crying jags, a sense of paralysis, inability to get started, inability to stay alone, or inability to talk about anything but your loss. This is the time to seek the support of your friends and family. You must take care of yourself. It usually helps to get lots of rest. It also helps to have a schedule and to keep busy. As each cycle of the season begins and ends, it usually gets easier for the survivor. Time often heals. You may be able to find solace and comfort in your religious beliefs or philosophical concepts. They may help you work through your grief and come to an acceptance of your loss. Often your spiritual advisor can help the healing process and start the acceptance stage. Support groups allow you to share your loss and let you know that you are not alone. Do not be afraid to ask for help. Do

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not isolate yourself. Hospice Hawai'i, St. Francis Hospice, the Life Foundation, and the American Cancer Society are just a few of the organizations that can provide you with information about bereavement support groups. Pastoral and social work departments of hospitals and even funeral homes can put you in touch with support groups. You can look up many of these agencies and groups in the "Telephone Reference Guide to Community Resources" included in this handbook. If you are not a joiner, you may feel more comfortable getting counseling on a one-on-one basis. Ask your physician or spiritual advisor for referrals. Remember that different people have different ways of grieving. Different cultural backgrounds, philosophies, and beliefs can determine how grief is expressed. Many people find great comfort in going back to their traditional beliefs and customs, which can provide a reference point when your emotions are in turmoil and you do not know what to do.

Practical Tips While you are still grieving and uncertain of what to do, it is usually best not to make major decisions too quickly. You may regret these hasty decisions for a lifetime. Many decisions can be delayed. It might not be best to sell your house and move in with your children. Moving to the mainland or even to a condominium may mean uprooting yourself from your friends and neighbors and familiar surroundings. These decisions may put you in strange and new situations that only emphasize your loneliness. Experts usually advise not to remarry just because you are lonely. Under most circumstances, it may be wise not to make major investments for at least a year while you are adjusting to life alone. Your well-meaning relatives, financial advisors, or children may give you too much advice, which may be too confusing at this time. Children mean well but their loss of a parent is not the same as your loss of a spouse or partner. They may

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not understand that you need to take the time to heal and that sometimes you just cannot think straight. Give your body and your emotions time to heal. When you are ready, take stock of your financial situation and your health, and then move on to new endeavors. Be careful of scams. While you are at an emotional low, you may need protection from aggressive sellers of investments, realtors who read death notices and say they have buyers for your home, and sellers of funeral plans. Be especially careful of attorneys who try to oversell their services and scare you with tales of the horrors of probate. Be careful of greedy children who are ready to take your possessions before you are ready to part with them. The Akamai

Survivor

Healing is a continuous and personal process. As you heal, you will begin to have a sense of completeness, a resolution of your relationship with loved ones, a sense of peace, and diminished anguish. For many survivors, healing leads to a different awareness. Life becomes more precious. Priorities are adjusted. What was once important may become less important, and what was once unimportant may become very important. Heal at your own pace. Each person is different. Remember, time usually heals. Many widows or widowers have become highly successful and saw widowhood as a time to achieve some personal goals. Many continue to have active social and professional lives. Many survivors remarry or find other partners. And, like the old refrain, they find that "love is wonderful the second time around." Now is the time to come full circle and start getting your own affairs in order. You will have learned that you can survive. It is your turn to prepare and document important information for your survivors. We have included a sample of a "Kokua Packet" in appendix A to help you get organized and provide information to others in an emergency Since UHELP first developed this packet, many

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persons have filled it out and put it in a place where family, friends, or even emergency response teams can find it. Some who have no other place to store documents have even put it in a plastic freezer bag and placed a notice on the refrigerator or freezer door that it is inside. If you wish to get the very visible, brightly colored "Kokua Packet" with its own plastic storage bag, contact UHELP. Do not put things off—it is time to put your own house in order.

8 On Your Own—First Things First

Getting Organized When the funeral or memorial service is over and relatives and friends have gone back to their homes, you may be left to straighten out the financial affairs of your spouse or other loved one. You may need to notify the Social Security Administration, the Internal Revenue Service, the Veterans' Administration, and even creditors about the death. Depending on the date of death, you may need to return the Social Security check or other monthly benefits. On the other hand, you may be entitled to receive life insurance, pension or retirement plan proceeds, Medicare and supplemental medical insurance repayments, and even, perhaps workers' compensation benefit payments. During this time, it is wise not to throw any papers away. If a dispute arises, you will need to have a paper trail to prove your side of the dispute. If you are given legal notice regarding any legal disputes, such as money due to creditors, nonpayment of rent, Social Security overpayments, and so on, get legal help quickly. Do not ignore the notice. If you do, you may lose your best chance to obtain legal recourse. You may want to do this yourself or get professional help from your accountant, lawyer, or financial advisor. How do you face the bills and notices, which may be confusing and unpleasant? When you are ready to face the task, there are various ways to get organized. Since I have been teaching for

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several years, I find that one practical way of organizing yourself is to picture yourself as a student "doing homework." Set up an area where you will do your homework. If you have a specific area, you will be less likely to be distracted and you may procrastinate less. A designated area becomes a place to work. Bills and notices will be harder to ignore. Set up your workplace with pencils, pens, stamps, envelopes, a letter opener, a calculator, and all the other supplies you need to tackle the work that you must do. A word processor or a computer with a printer is also helpful. Access to a fax machine and copier commonly round out a home office and make your work more efficient.

Inventory Once you have settled in, take stock of what you and your loved one own. You may be the surviving owner of all of your combined property, but you may not. To find out, start by taking an inventory of the "estate" of the deceased. Make sure you include such items as stocks, bonds, mutual funds, jewelry, life insurance, personal property, art, antiques, and collectibles. You may need a lawyer to take the estate through the probate process if the deceased had property in his or her name. (The subject of probate will be reviewed later in this chapter.)

Locating Assets Locate IRAs, insurance papers, safe-deposit boxes, stock certificates, and jewelry. If you have a hard time finding things, look through old address books and canceled checks for clues about advisors, business associates, insurance policies, and other matters. Look for keys to safe-deposit boxes, desks, strongboxes, and automobiles. Also check the glove compartment and trunk of automobiles, closets, attics, and basements for papers and other clues. Some people have a habit of squirreling away pieces of jewelry. Many stories are told of how people hide their wedding rings in bits of tissue paper and, unknown to the other spouse, the clothes and rings are thrown away with the trash. Check

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pockets, old purses, wallets, drawers, and shoe boxes. (Also check the freezer compartment of your refrigerator for "frozen assets.") Annuities and lump sum payments made to survivors are often confusing. For some survivors, it is better to take the lump sum payment, and for others, to turn it into an annuity. Each person's circumstances are different. You have only a certain length of time to decide. Watch the deadline carefully or it may automatically revert in accordance with the terms of the contract. If you are in doubt, see your advisors.

Joint Bank Accounts If you have a joint account or a joint safe-deposit box with the deceased, you will normally be able to conduct business as usual since most banks no longer freeze assets in a joint account. Again, since each financial institution's policies are unique, check with them ahead of time. To close out an account that was in the deceased's name only, you will need a death certificate and, depending on the amount in the account, an affidavit or letters from the court naming you as the personal representative of his or her estate.

Legal Documents Find and get a copy of the will or trust and all the other important legal and financial papers. Safeguard the originals in a safedeposit box or other safe location such as a case file in an attorney's office. Keep copies in your own office so that you will have access to required information. You may need to obtain certified copies of such documents as birth, marriage, and death certificates. If you are not related to the deceased and have not prepared, however, you may have a difficult time.

Disclosure of Vital Records Obtaining birth, marriage, and death certificates can be difficult because of laws permitting release only to certain people or

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under certain conditions. Disclosure of vital public records continues to be controversial since there have been many incidents of people looking up birth, marriage, and death certificates with the object of selling goods or services or even committing a crime based on the information they receive. The Hawai'i state Department of Health has a central Bureau of Public Health Statistics and maintains birth certificates, supplemental birth certificates for adopted children, certificates of Hawaiian birth, marriage and annullment certificates, and death certificates. The department will not permit inspection or issue a certified copy of any such record unless it is satisfied that the applicant has a direct and tangible interest in the record. Those who are considered to have a direct and tangible interest include the registrant, the spouse or reciprocal beneficiary of the registrant, a parent of the registrant, a descendant of the registrant, a person having a common ancestor with the registrant, a legal guardian of the registrant, a person or agency acting on behalf of the registrant, a personal representative of the registrant's estate, or a person whose right to inspect or obtain a certified copy of the record is established by an order of a court of competent jurisdiction, adoptive parents who have filed a petition for adoption and who need to determine the death of one or more of the prospective adopted child's natural or legal parents, a person who needs to determine the marital status of a former spouse in order to determine the payment of alimony, a person who needs to determine the death of a nonrelated co-owner of property purchased under a joint tenancy agreement, and a person who needs a death certificate for the determination of payments under a credit insurance policy. It is often convenient to have a dozen certified death certificates while settling an estate. Death certificates can be obtained through the mortuary at the time of death for a small fee. If you wait longer, they need to be ordered from the Department of Health, also for a small fee. The previous year's tax returns, insurance policies, bank statements, Medicare/Medicaid documents, payroll stubs, and Social Security numbers are helpful for filing tax returns, claiming death benefits, and making insurance and other claims.

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Bills, Debts, and Other Obligations Get a filing cabinet and make separate folders for each subject area, payee, and correspondent. Within each folder separate the bills that come in from the bills that have been paid. It helps to keep these in chronological order. Set up folders for correspondence concerning insurance policies, medical reimbursements, health insurance policies, pensions, and bills for funeral expenses. You need to keep track of what you paid, what you need to pay, and with whom you have corresponded. It is easy to forget and let things slide. Get a calendar and mark down paymentdue dates as well as payment dates. You may wish to take advantage of automatic bill payment services offered by different banks. Keep track of all the income, payment for claims, and reimbursements that come in. Some people keep a diary to remind themselves of conversations, places visited, what people said, and what needs to be done. If you were married, separate your bills and joint bills from your spouse's bills. You or another person acting as personal representative will need to do an accounting of money spent in paying your spouse's individual bills. Bills that your spouse incurred in his or her own name, such as credit cards or promissory notes in the individual's name, are usually paid out of the estate. Taxes, lawyer fees, and CPA fees also are paid by the estate before proceeds are distributed to heirs. If you were in a reciprocal beneficiary relationship, many of the same considerations apply, with the notable exception of federal taxes and benefits.

Medical Bills Medical bills can belong to the deceased or to the survivor. Your bills may need to be paid as usual, but it is possible that the medical bills of the deceased can wait to be paid by the estate, or can be paid by some other source such as medical insurance, or sometimes can go unpaid. The following information pertains to both the medical bills of the deceased and to those of the survivor. Insurance, Medicare claims, and medical supplemental insurance claims are confusing. Hospital bills especially can be

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lengthy and confusing. If you do not understand the charges, speak with someone at the hospital who can help you. Many social workers employed at hospitals are knowledgeable about government health benefits and can give you information about Medicare or other health insurance rules and how the charges were determined. Studies have shown that most large medical bills have mistakes in them, usually in favor of the health care provider. Do not pay a bill until you understand what it is for. While you are in the process of making a determination about the validity of a debt, you may wish to inform the creditor so that collection actions are held off. You may have to prove certain medical bills were paid. Also, for your own protection, you may need to refer back to bills to ascertain their correctness. Separate medical bills by physician, clinic, hospital, or insurance carrier. Physicians will usually bill you separately from hospital services. Put the bills and notices in chronological order. Match and compare the medical bills with Medicare and Medicare supplemental insurance payments. After a while, you will get the "hang" of the terminology and forms. Contact the doctor's office, hospital, or Medicare fiscal intermediary or carrier if you have questions about the bills. Check with your attorney to see if you are legally responsible for all the bills or if there is some legal way to discharge your responsibility, such as bankruptcy, if the bills are overwhelming.

Deductibility of Medical Expenses Check with the IRS, your accountant, or other tax preparer to see if your medical bills qualify you for an income tax deduction. Effective December 31, 1996, Congress adopted the Health Insurance Portability and Accountability Act of 1996. The Health Act clarifies that benefits payable under qualified long-term care insurance policies are excluded from gross income for tax purposes. Additionally, the Health Act provides that premiums paid for a qualified long-term care insurance policy are to be treated as a medical expense. Thus, premiums paid for qualified longterm care coverage may be deducted to the extent that total med-

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ical expenses exceed 7.5 percent of adjusted gross income, subject to certain age-based limitations. Certain expenses for care givers may also qualify for income tax credit.

Spousal Liabilities Is a spouse or reciprocal beneficiary responsible for the debts of a deceased spouse or reciprocal beneficiary when those debts were incurred by that spouse or reciprocal beneficiary alone? Reciprocal beneficiaries do not have the same rights and obligations under the law that are conferred through marriage. Also, if the surviving spouse truly did not participate in or sign for the debt, the answer often depends on whether the debt was "secured" by some "collateral," whether the debt was for family "necessaries," and, as a practical matter, how much the amount of the debt is. In Hawai'i, a married person may make any contracts, oral and written, sealed and unsealed, with her or his spouse, or any other person, in the same manner as if she or he were doing so alone. If a debt is secured by collateral (for example, a television set is the security for the debt to buy it), then it may be necessary to pay the debt or give up the collateral. What if the debt is not secured? Hawai'i law has long stated that a married person is not liable for the debts of a spouse; nor is a married person's property liable to be taken on execution or other process against that person's spouse. One spouse may feel some "moral responsibility" to pay for the debts of the other spouse, but often, especially if the debts are relatively small and the spouse feels he or she cannot afford to pay the debt, creditors will not pursue the debt. Even when creditors threaten to sue or to send the account to a debt collector, as a practical matter, the surviving spouse often will not end up paying the debt, as long as it is not a joint debt. In Hawai'i, the issue whether a spouse is liable for the debts of the other spouse is not new. In 1877, the Hawai'i court said that a husband was not liable for his wife's debts if credit was given solely to her for goods supplied to her. In 1888, a law (which is still in effect) said that both spouses, whether married in Hawai'i

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or in another jurisdiction and living here, are required to maintain, provide for, and support one another during their marriage and are liable for all debts contracted by one another for "necessaries" for themselves, one another, or their family during their marriage. Of course, if the deceased spouse has an estate, the creditors can go after the estate just like any other creditor. Creditors may also be able to seek recovery from a joint account of the deceased if the estate is not large enough to pay debts of the creditors, but a surviving spouse and family will still be entitled to statutory allowances as explained in the probate section of this book.

Creditors and Collection Agencies Although it may seem obvious, remember that there is no debtor prison in America. Although creditors may hound you, you will not be thrown in jail if you cannot pay your bills. If you personally incurred the debt, you have a responsibility to pay it. Many families, however, feel a moral responsibility to pay for the debts of the deceased if the estate of the deceased is not financially able to pay. Be prepared for creditors and debt collectors to pursue debt collection in an aggressive manner. If you are being pressured and you want them to stop, often all you have to do is to ask them to stop. You have certain rights under state and federal "fair debt collection" laws. This is another area you can discuss with your attorney.

Consumer Protection There are laws that protect consumers from overly aggressive bill collectors. If you feel that the debt was incurred through unfair and deceptive practices or that the bill collector is abusive in collecting a debt, call the Hawai'i State Consumer Resource Center to obtain information about how to file a complaint. If the debt was justly incurred, one solution is to try to negotiate with your creditors to see if they will accept a small payment each month or some other arrangement. Personal bankruptcy may be a last resort. Declaring bankruptcy gives you a fresh start and

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gives each creditor a fair distribution of your assets. Remember that certain government benefits such as Supplemental Security Income (SSI) and Social Security (discussed later) usually cannot be garnished.

The Estate If probate is necessary, a personal representative will be named to settle the estate of the deceased. This person may need to contact a lawyer to help settle the estate if there are complications. (Probate will be discussed in greater detail later.)

Personal Representative or Executor Many people think it is an honor to bestow the job of a personal representative (Hawai'i uses the term "personal representative" rather than "executor") on a friend. Contrary to this common misconception, the personal representative's job is not always an easy one, especially if there is a conflict among beneficiaries. In complicated cases, being a personal representative can require stamina, patience, and attention to accounting detail. If your spouse, reciprocal beneficiary, or friend has named you as his or her personal representative and you accept this responsibility, your job may be long, difficult, and time-consuming. You may need to hire a lawyer to take the estate through probate. It involves a lot of footwork to do an inventory, close out accounts, inform banks, contact insurance companies and pension plans, and do the other duties listed below. Duties of a Personal Representative For starters, you may have to locate the will; if you need help, hire an attorney. You will have to take an inventory, gather all assets, and file for Social Security, civil service, Veterans/ and private insurance benefits. You will need to check with the deceased's employer for unpaid wages, insurance, and other employee benefits. You will need to pay bills and creditors, as

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well as state and federal income taxes and estate taxes. If the deceased had assets such as real property in his or her own name in another state, you may need to hire an attorney to go through "ancillary" probate in the state where those assets are located. With a very complicated estate, it might be easier to let your CPA, trust company, or attorney handle all the necessary filing of papers. Deadlines must be met and a host of forms must be filed. Under some circumstances, if the estate is large you may even wish to disclaim some inheritance. Under the new probate code, generally, for a small estate, probate can take only a few weeks or months. For larger estates, it may take longer. If you do have somebody else act as personal representative and attorney of the estate, you should know that the law allows them to be paid "reasonable fees and expenses."

Letter of Appointment Some institutions such as the Social Security Administration or the banks will require a "letter of appointment" before proceeds are released to ensure that the proceeds go to the person authorized to make distribution. Basically this letter is a document signed by the court appointing a personal representative and is evidence of who has the legal authority to manage and settle the estate. Even if the estate is not considered very large, getting this letter of appointment may entail going to the clerk of the court with the proper documentation to appoint someone to act in the capacity of a personal representative.

Death and Taxes One of the jobs of the personal representative is to pay the taxes of the deceased. In Hawai'i there are six different types of taxes: federal and state income tax, federal and state estate tax, and federal and state fiduciary income tax. Federal and state income tax is paid by individuals and couples; an income tax form must be filed annually. You will be required to file income tax returns and, if you are the surviving

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spouse or are acting as the personal representative of a person who died, you may have to file a final return for the decedent. If you are the surviving spouse, the year your spouse died is the last year you may file a joint return with that spouse. When you file a return for the decedent, either as the personal representative or as the surviving spouse, you should write "DECEASED," the decedent's name, and the date of death across the top of the tax return. If no personal representative has been appointed by the due date for filing the return, the surviving spouse (on a joint return) should sign the return and write in the signature area "Filing as surviving spouse." Check with the IRS for the latest updates and for further important information. Federal and state estate taxes generally must be paid if the deceased's gross estate exceeds a certain amount. For deaths occurring prior to December 31, 1997, the exempt amount was $600,000. Gradually, this amount increases from $625,000 in 1998 to $1 million for deaths occurring in the year 2006 and beyond. The personal representative would need to determine the value of everything, including property held jointly, property held by a living trust, property solely in the deceased's name, life insurance proceeds, property held out of state, retirement benefits, and annuities. An estate is a taxable entity that comes into effect with the death of an individual and exists until all assets are distributed to the beneficiaries. Federal and state fiduciary income taxes are filed when the deceased's estate earns income between the time of death and the distribution of property. You must account for how the income was spent or how much was retained by the estate. Accordingly, the personal representative may have to file income tax returns for the estate and make quarterly estimated tax payments. In addition, an estate tax return generally must be filed within nine months after the date of death if the value of the gross estate at the date of death was more than $600,000. Deductions and a special credit called the unified credit are allowed, which may reduce or eliminate any tax. If the amount of the gross estate requires a return to be filed, it must be filed even if the deductions and unified credit make it a return with no tax due.

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As previously discussed in the section on gifts in the estate planning chapter, the unified credit will be reduced if gifts exceeding $10,000 a year were made during the lifetime of the deceased, thus, using up the lifetime exemption. Hiring a CPA or an accountant to help you with the various types of returns is a good idea. They can also help decide which is the best course of action "tax-wise" to handle a wide range of other financial options upon the death of a loved one. For example, many bereaved spouses are asked to make an "election of benefits" upon the death of their spouse or partner when they are still grieving and are not able to focus on money matters. When a person is rushed into making a decision, he or she can make the wrong choice that may well be impossible to change. When asked to make a decision, seek out the advice of a professional. Do not be afraid to pay for advice that can often save you time, money, and trouble.

Probate Probate, as discussed in chapter 2, is the court-supervised process of distributing the interest in property that you own in your name to another party after you die. Whether a piece of property or an account needs to be probated depends on who the owner(s) is (are). Joint ownership of property with rights of survivorship, property or accounts held in a trust, insurance proceeds, pensions, and annuities usually do not have to be probated. Property held as tenants in common or tenancy by the severalty (sole ownership) usually needs to be probated. Property of a deceased that is subject to probate is oftentimes called the probatable estate. Only property over which the State of Hawai'i has jurisdiction is subject to probate in Hawai'i. Often individuals have property (real or personal) located in another jurisdiction. Property located out of state would be distributed in accordance with the laws of that jurisdiction. It is not unusual to have a probate action in one state and one or more "ancillary" probate actions in other jurisdictions. An overview of the various processes in

On Your Own—First Things First • 197

Hawai'i involved in the distribution of property upon death, including small estates and the administration of estates under $60,000 by the clerk of the court, is contained in the appendix entitled "Probate and the Distribution of Property upon Death."

Collection of Personal Property by Affidavit If the gross value of an estate is $60,000 or less, and if it does not involve real estate, small estate affidavit proceedings may be utilized to entirely bypass any formal or informal court proceedings. Such an affidavit is often used to close a bank account or to transfer items of personal property. It can also be used to transfer a motor vehicle. Thirty days after an individual's death, any person claiming to be the "successor" of the decedent may present an affidavit to any person indebted to the decedent or having possession of tangible personal property of the decedent. The person presenting the affidavit to the person or institution holding the property can then obtain legal ownership of the property without having to go through probate and the person or institution that turned over the property is released of liability for having done so. (A sample affidavit can be found at the end of this chapter.) Of course, if the deceased had made a living trust and properly transferred property into it, there will generally be no need for probate. However, the services of an attorney may still be necessary to draw up deeds and other documents to transfer property to heirs and beneficiaries.

Unmarried Couples Unmarried couples may face many pitfalls in spite of their best efforts to organize, if the first person to die has not made adequate legal preparations. Hawai'i has taken the first few steps to give unmarried partners certain rights and benefits. Of course, there still can be prejudice, animosity, and misunderstanding or legal obstacles when you try to settle the affairs of a partner. The state may deny you access to certain vital records,

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and institutions may be reluctant to release information because of privacy laws. Doctors and hospitals may not want to give you information, let you see medical records, or even allow you to enforce your loved one's wishes. Remember that while powers of attorney cease to be effective upon death, documents such as wills or appointments to be the personal representative or successor trustee may help enforce your rights. Even if proper legal preparations have been made, there can still be trouble. Families may demand personal items or heirlooms. You will need to decide whether it is worth the trouble and possibly harassment to keep what you as well as the family cherished. Also family members may not approve of your decisions concerning final disposition of the body. Sometimes it helps to get a respected third party to act as a "go-between" when emotions are high and sorrow is felt by all.

Hidden Assets One of the greatest worries of being left alone is fear of poverty and financial hardship. The future looks bleak when you have bills to pay and very little money coming in. If you had not participated in the planning and budgeting of your household income and expenses, you may have a very poor grasp of your financial situation. Where you will get the money to pay all the bills and your own living expenses can seem overwhelming. We will discuss both the prospects of not having enough money and looking for money.

Resources Once you start assessing your resources, the picture may not be as bleak as you had initially painted it. Find out where you and the deceased may have had savings, checking, credit union, and other accounts. If you do not know where these accounts are, wait for the monthly statements that these institutions send out. You may be able to obtain this information from the tax returns that you and the deceased filed. The tax return may tell you about interest or dividends earned at different institutions, inter-

On Your Own—First Things First • 199

est paid on mortgages, and expenses paid for properties other than your home.

Employee Death Benefits Another place to look for additional income could be at the deceased's workplace, where you may find that he or she was entitled to retirement, group insurance, or disability payments or death benefits. Also, if the deceased worked at more than one place, he or she may be entitled to benefits from multiple sources. This is where a review of his or her job history may be rewarding. You may want to go to the personnel office at the different workplaces to inquire in person. If you are unable or unsure of yourself, take someone with you to back you up. Government Benefit Programs Social Security, Supplemental Security Income, and veterans' benefits are all benefit programs administered by the federal government. They can be valuable resources, but many people do not know either how to apply for them or if they are eligible. The appendix entitled "Selected Federal Benefits Programs" gives you a brief overview of these significant programs. Statistics show that there are 13 million widowed persons living in the United States. Half of the women over sixty-five are widows and one-third of widows live in poverty. If you are in this category, make sure to look into other government benefits such as state general assistance, Section 8 housing, or elderly housing. Do not be afraid or embarrassed to apply and make use of these benefits. Earned Income Tax Credit (EITC) If you have earned income from being employed or selfemployed, you may be able to get a credit on your tax return if you earn below a certain amount per year. Even if you do not owe any tax, you could get a refund. The amount of credit you can receive is based on how much money you earn and how

2 0 0 • The Elder Law Hawai'i Handbook

many qualifying children you have. There are certain age limitations for people who do not have qualifying children. For example, people who have no qualifying children and earn between $4,200 and $5,300 (1997) could get the maximum credit amount worth up to $323 (1997) provided that they are under age sixtyfive. You can get the credit all at once when you file your income tax forms or you can get payments throughout the year in your paycheck by choosing the "Advance EITC." The IRS or your tax preparer can provide you with more information about this often-ignored source of additional funds. Insurance Insurance is another source of funds. Make sure that all claims with secondary and other insurance carriers have been filed for reimbursement or payment. Life insurance policies paid to you because of the death of the insured person are not taxable to you unless you purchased the policy. If the deceased owned the policy, the amount of the proceeds may be countable in the gross estate of the decedent for estate tax purposes. Life insurance policies, medical insurance, cancer insurance policies, and other types of policies may provide extra funds. If you do not know what the terms of these policies are, write to the company with as much information as possible to get a duplicate copy of the policy. (Recall the discussion in chapter 3 of viatical settlements and the use of life insurance policies as a resource for individuals who are terminally ill.) Reverse Mortgages Your home is another potential source of income. You may have a hard time supporting a household by yourself upon the death of a loved one or you may just want some extra money. Many older people are cash-poor but asset-rich. If you have either paid off or have paid much of the mortgage on your home, you can tap into this equity through a reverse mortgage. A reverse mortgage allows you to receive a certain monthly payment based on the equity you have in your home. You can receive a monthly

On Your Own—First Things First • 201 payment for life. At the end of your lifetime, a certain interest in your home reverts to the bank that paid you a monthly sum. This may be a solution to providing the cash that you need to live on. To be eligible for a reverse mortgage, the borrower and any co-borrower must be at least sixty-two years of age, the home must be owner-occupied, and there must be sufficient equity in the home. Not all financial institutions are permitted to offer reverse mortgages, which are regulated by federal law. Charitable Gifts

There are different variations of using your home to get cash. Giving your home to a charitable organization in return for a monthly income is one variation. The charitable organization usually buys an insurance policy on your life. Upon your death, the charity receives your home and proceeds from the policy. For some people this method saves estate taxes as well as provides a monthly income. Talk this over with your advisors. Remember, once you give something away, you may not be able to get it back.

Retraining Many survivors have taken on jobs rather than depend on others. You may want to do the same. Look at your community resources for retraining programs. Perhaps all you need to do is to polish your skills. The University of Hawai'i and its community colleges have programs that educate, teach new skills, and offer job counseling. For some, it may be best to be "on your own."

Discrimination in Employment and against the Disabled

Unfortunately, especially in bad economic times, you may have a hard time finding a job. Occasionally, you will not get a job because of discrimination. You may also be discriminated against due to disability. The appendix entitled "Age Discrimination in Employment and the Americans with Disabilities Act" provides

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information about common discriminatory practices against the elderly and disabled. Even "younger" people may be interested in this section since the Age Discrimination in Employment Act applies to individuals who are forty years of age or older. If you feel you are being discriminated against because of race, color, religion, national origin, gender, age, or any other reason, you can call the Hawai'i Civil Rights Commission (HCRC) or the federal Equal Employment Opportunity Commission for assistance. Under the federal Age Discrimination in Employment Act (ADEA) most employees and job applicants over the age of forty are protected from discrimination with respect to employment practices or decisions, including hiring and firing, promotion, layoffs, compensation and other terms and conditions of employment. The HCRC and the EEOC have a "job share" program through which they have joint jurisdiction over complaints about employment discrimination and working agreements to most effectively handle complaints in Hawai'i. Again, you can call either the HCRC or EEOC for assistance. Americans with Disabilities Act

The Americans with Disabilities Act (ADA) of 1990 made dramatic changes in the way that disabled people in the United States are treated. While age, of course, is not a disability, older persons are often afflicted with significant physical or mental impairments that substantially limit one or more major life activities. While the law is rather complicated, you should know that it provides significant protection against discrimination and mandates access to many things that people without disabilities take for granted. As with the Age Discrimination in Employment Act, the federal Equal Employment Opportunity Commission plays a vital role and is ready to assist you. See Appendix H for more information.

Housing and Landlord-Tenant Matters Your living conditions may change upon the death of a loved one. It may be that you find your current home too big or you

On Your Own—First Things First • 2 0 3

may not think you can afford to live there on your own. Many survivors as well as other persons with lower or fixed incomes have a hard time finding a decent place to live at a reasonable price. When they do find a place, they often find many problems and a "take it or leave it" attitude on the part of the housing authority or landlord. We have included an appendix entitled "Housing and Landlord-Tenant Issues" that explains different types of housing available and various tenants' rights. Best Wishes You have survived an ordeal but now you are better prepared to face whatever else life may have in store for you. Best wishes, a n d ALOHA!

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AFFIDAVIT FOR THE COLLECTION OF PERSONAL PROPERTY SAMPLE DOCUMENTS—NOT TO BE USED AS LEGAL INSTRUMENTS In The Matter of the Estate of John Doe, Deceased AFFIDAVIT FOR C O L L E C T I O N O F PERSONAL PROPERTY O F THE DECEDENT STATE O F HAWAI'I C O U N T Y OF

) ) )

SS.

Sonny Doe, after being first duly sworn on oath, deposes and says: 1. Affiant is the successor of the above-named decedent who died on May 25, 1998. A certified copy of the death certificate is submitted herewith. 2. The gross value of the decedent's estate in this State does not exceed $60,000.00 3. No application or petition for the appointment of a personal representative is pending or has been granted in this State. 4. Affiant is entitled to payment or delivery of the aforementioned property by virtue of H.R.S. Section 560:3-1201, as amended, and by virtue of being decedent's son, sole heir, and nominated personal representative under a will dated July 8, 1997. 5. Affiant has read and understands H.R.S. Section 560:3-1202: Section 560:3-1202 Effect of affidavit. The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if that person dealt with a personal representative of the decedent. The person is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to

On Your Own—First Things First • 205 pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefore to any personal representative of the estate or to any other person having a superior right. 6. FURTHER AFFIANT SAYETH NAUGHT.

Sonny Doe Subscribed and sworn to before me on this day of , 19

Notary Public, State of Hawai'i My commission expires:

.

Appendix A

Kokua Packet

HOW TO USE THIS KOKUA PACKET First, this is not a legal document but a tool you can use to provide family, friends, caregivers, and emergency workers with helpful information when needed. Keep it updated or make a new one periodically. YOU SHOULD NOT INCLUDE MATTERS IN THIS PACKET THAT YOU WISH TO KEEP CONFIDENTIAL SINCE, OBVIOUSLY, THIS PACKET MAY BE LOOKED AT BY PEOPLE GOING THROUGH YOUR FREEZER OR WHEREVER YOU KEEP THIS PACKET. Do include information you want to be known in an emergency. You may, of course, provide as much or as little information as you like, but be careful about including personal financial information that could be used improperly by dishonest people. Be especially careful about credit card and bank account numbers, which could be used to steal from you. This packet is intended to provide information in an emergency and to direct people where to locate legal documents and other important material. You can even provide information about health matters such as your medical condition, medications, and medical personnel to contact in an emergency. Some of the information is used to provide information for your death certificate. Keep the Kokua Packet updated—at least yearly. You can use a pencil if you do not want to write the entire package of information over each time. UHELP has full-size Kokua Packets, including plastic protective bags and colorful labels that you can stick on your freezer, refrigerator, file cabinet, or wherever you wish to store your Kokua Packet. Write to

207

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• Appendix A

UHELP for further information about this and other products you may be able to obtain for a donation. It may be a good idea to let your family and friends know about the sticker and the Kókua Packet. Again, this is not a legal document and is not intended to provide legal advice. To obtain necessary legal advice and guidance, you should seek the professional legal counsel of an attorney. Use additional sheets of paper to include all items requested or information you deem appropriate.

Kökua Packet • 209

KOKUA PACKET LEGAL INFORMATION FORM Last Date Reviewed,

GENERAL INFORMATION 1. Full Name: LAST 2. Social Security Number:

FIRST

MIDDLE

3. Maiden or Other Names: 4. Address: STREET

APT. NO.

CITY

STATE

ZIP C O D E

5. Are you a legal resident of Hawai'i? Yes

No

6. Telephone Number(s): 7. Birth Date:

/ Month

/ Day

Year

8. Place of Birth: 9. Are you a citizen of the United States? Yes If no, status and identification number:

No_

10. What is your ethnic background?. 11. Your Present Marital Status: (Single; Married; Widowed; Separated; Divorced; Marriage Annulled; Reciprocal Beneficiary) 12. If married or separated, full name of your spouse and date of marriage:

210 • Appendix A 13. If widowed or divorced, full name of former spouse(s):

14. Education (highest grade completed): 15. Military Service and Usual Occupation Were you ever in the military? Yes No Service Component: Dates of Service: From to VA file number, if applied for: Location of D D 214 (discharge form): Usual Civilian Occupation: 16. Other General Personal Information:

FAMILY INFORMATION 1. Parents Name of father: Name of mother (including maiden name):

2. Children and other dependents. (Under the "Comments" section, for each child, indicate if he or she is a natural child, child from a former marriage, adopted child, stepchild, deceased child, or hanai child.) NOTE: List all children, even if they are not to receive anything under your will. Attach additional sheets of paper as needed. Add phone numbers, if desired. Child's Full Name

Sex

Address

Birth Date

Comments

Kökua Packet • 2 1 1 3. Names and addresses of nearest living relatives other than children (or very close friends): Name

Address/ Phone Number (if desired)

General Additional Information about Family Matters:

4. Advisors (Attorney, Physician, Clergy, Accountant, Insurance Agent, Financial Planner, Trust Officer, etc.)

Name and Position

Address/Phone Number

Name and Position

Address/Phone Number

Name and Position

Address/Phone Number

Name and Position

Address/Phone Number

PERSONAL RECORDS 1. Birth Certificate Original Issued At (State and County):_ Copy Located At:

212 • Appendix A 2. Marriage Certificate Original Issued At (State and County): Copy Located At: Date of Marriage:

'

3. Medical Records Name of Personal Physician: Name of Medical Plan: Name and Policy Numbers of Health, Disability, and Nursing Home Insurers: 4. Location of Military Discharge Papers: 5. Location of Financial or Other Records: 6. Location and Box # of Safe-Deposit Boxes: 7. WILLS and TRUSTS Have you ever made a will or trust? Yes If yes, when? If yes, where is it (they)?

No

8. POWER OF ATTORNEY (Financial and Legal Matters) Have you ever made a power of attorney? Yes No If yes, when was it made? What type (general, special, etc.)? Is it "durable"? Yes No Who is your agent? Where is it located? 9. MEDICAL TREATMENT DECISIONS a. Living Will Have you ever made a living will? Yes No If yes, where is the original? Is a copy in your medical!file? If no, does your physician or somebody else have information about your future medical treatment desires? (Explain)

Kôkua Packet - 2 1 3 b. Health Care Power of Attorney Have you ever made a health care power of attorney? Yes. No If yes, where is the original? Is a copy in your medical file? Who is your agent (and alternate agents)?

c. Comfort Only Document Do you have a comfort only document? Yes If yes, where is it? Name of Physician and/or Hospital:

No

OTHER MATTERS A. GOVERNMENT BENEFIT PROGRAMS Have you applied for federal or state benefits such as Social Security, Supplemental Security Income, food stamps, Medicare, Medicaid, or general assistance programs? If yes, which ones and who is your contact?

B. O R G A N DONATION, FUNERAL, A N D MEMORIAL ARRANGEMENTS Have you made arrangements or do you have any specific desires concerning donation of your body/organs or burial/cremation and concerning funeral or memorial arrangements? Yes No If yes, explain:

Does your nominated Personal Representative have the authority in your will to carry out your instructions concerning disposition of your body? Yes No IN CASE OF EMERGENCY CONTACT: NAME:

PHONE:

214 • Appendix A Or: NAME: Or: NAME: PHYSICIAN:

PHONE: PHONE: PHONE:

HOSPITAL CHOICE: MEDICARE NUMBER: BLOOD TYPE: MEDICAL PROBLEMS: ALLERGIES AND DRUG SENSITIVITIES: GENERAL COMMENTS AND INSTRUCTIONS: (Use extra sheets of paper if necessary)

Appendix B

Settling Your Case Without a Lawyer

Sometimes you may be unable to get an attorney to help you, or you may be unable to afford one, or you may wish to settle a dispute on your own. Here are some of the resources available to you.

Consumer Protection The State of Hawai'i has a Consumer Resource Center that can direct businesses and consumers to appropriate offices within the Department of Commerce and Consumer Affairs to help answer consumerrelated questions. The Office of Consumer Protection (OCP) is one of these offices. The primary purpose of the OCP is to promote fair and honest business practices by investigating alleged violations of consumer protection laws, mediating consumer complaints, taking legal action to stop unfair or deceptive business practices, and educating the public and businesses regarding their respective rights and obligations in the marketplace. As a state agency, the OCP does not charge a fee for its services. Among the complaints that the OCP will accept include those concerning unfair and deceptive business practices, residential landlord-tenant disputes, deceptive advertising, door-to-door sales, mail-order purchases, endless chain schemes, health clubs, travel industry, refunds and exchanges, and violations of state discriminatory housing laws. The OCP will also refer your complaint to another enforcement agency if necessary. A person who has a dispute with a business or

215

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• Appendix B

businesses may have his or her complaint investigated by the OCP, but charges of unfair competition between businesses are not pursued by this Office. The investigator learns both sides of the issue and then tries to help the parties settle their differences. He cannot force an agreement if no law is broken. If there is a possible violation, however, the complaint may be reviewed for legal action. The OCP cannot recommend particular businesses to consumers, but it does maintain records of consumer complaints to help consumers make informed decisions. If you wish to review complaint records on a particular business, call first to determine whether complaints have been filed and then make an appointment to see the records. The OCP does not give summaries of files over the phone nor can you see active case files. The powers of the OCP are defined by state law. The OCP can initiate legal action on behalf of consumers generally, but does not represent individual complainants as their private counsel. Moreover, the OCP does not have criminal powers of arrest or property seizure. The OCP may file a civil lawsuit to stop specific unfair or deceptive acts based on your complaint with the main goal of stopping the illegal conduct. It may then seek restitution for you and others who file similar complaints.

Small Claims Court Attorneys are not always needed to help settle a dispute. If the two opposing persons cannot work out their disagreement between themselves, a third party, such as the Neighborhood Justice Center, may help. In certain cases, the small claims court can be a solution, especially for settling landlord-tenant disputes about security deposits, where it has exclusive jurisdiction. There is currently a $15 filing fee. A division of the district court, the small claims court can settle matters between two or more parties by a judge in a simple and informal manner. The judge's decision is final and there is no right of appeal, although the losing party may ask the court to alter or set aside the judgment within ten days after filing of the judgment. The small claims court has power to handle only the following types of cases: 1. Cases for the recovery of not more than $3,500 net over and above any amount for interest and costs that may be awarded by the court (limits may change). A counterclaim by the defendant in a small claims case for up to $10,000 plus interest and costs (limits may change)

Settling Your Case Without a Lawyer • 217 2. Cases to settle a security deposit disagreement between the landlord and the tenant of a residential property 3. Cases for the return of leased or rented personal property worth $3,500 or less where the amount claimed as rental owing does not exceed $3,500 (limits may change) 4. Cases for the recovery of damages sustained or for the repossession based on the unauthorized removal of shopping carts, shopping baskets, or the like from a store premises The procedure is simple and informal for the plaintiff (the person filing the claim) and the defendant (the person responding to the claim). The court clerk can assist in preparing any papers that are necessary to sue for the recovery of a personal claim. No lawyers are needed nor are they allowed for security deposit cases. At the hearing you will be required to present the facts of your side of the case in your own words. Bring witnesses who can back up your story. Bring any documents that relate to the case, such as contracts, bills, photographs, letters, repair estimates, and bills. Witnesses may be summoned to court by subpoena if they do not come voluntarily. The party requesting such an order must pay witness fees and mileage, although these costs may be recovered from the losing side if the party wins the case. It should be noted that the court cannot act as the collection agency for the judgment creditor (the winning party).

Mediation and Arbitration Other ways of resolving disputes include using mediation and arbitration services. Generally, mediation services are strictly voluntary and the recommendations of the mediator are not binding on either party to a dispute. The mediator's role is to help each party find an amicable solution to their differences. Perhaps the best known local mediation service is Hawai'i's Neighborhood Justice Center. Arbitration services can be binding or nonbinding, depending on the circumstances. If, for example, the parties agree to binding arbitration, the decision of an arbitrator would have to be followed. Arbitration, like mediation, is becoming more and more popular because people often do not want to go through the expense, trauma, and time that court battles often take. Numerous arbitration services are being set up nationwide, including in Hawai'i. While they are not usually free, they often are much less expensive than going to court.

Appendix C

Euthanasia, the "Slippery Slope," and the Courts

Euthanasia The discussion of assistance in dying brings up the term "euthanasia," which continues to be very controversial and which is often misunderstood. The term is used in widely differing ways in the nation's debate over death and dying, and there seems to be an overall failure of many in the debate to communicate due to misunderstandings. First of all, it may be helpful to distinguish between "active" and "passive" euthanasia. The term "passive euthanasia" is commonly used to describe the withholding or removal of life-sustaining medical treatment. The term "active euthanasia" can be described in two distinct senses, namely, the " D u t c h " and the " G e r m a n " senses. The Dutch practice and usage of the term may be best defined in the sense of the Greek root eu-thanatos, "good death," and it is considered essentially free of any stigma. In this sense a physician provides assistance in dying, and a patient's life is ended, not only at his or her request, but he or she is provided with certain protections to ensure that the choice is truly voluntary and that the patient has various options and social supports that are afforded to him or her. The German sense of the term is oftentimes understood in a way that brings back memories of the abuses of the Nazis and suggests assistance in dying that may be coerced and motivated by reasons other than medical ones, including cost control. It also suggests the specter of genocide, human experimentation, and "mercy killing," through which

218

Euthanasia, the "Slippery Slope," and the Courts • 219 people are killed to "put them out of their misery" or in circumstances where their "quality of life" may be "marginal." In this sense, euthanasia could be practiced on individuals without their consent when they are no longer "competent" or even if they have never been competent. Today, since Germany as a whole is now so vehemently opposed to involuntary euthanasia of any kind, that country relies on and permits the practice of assisted suicide in which the physician's assistance is generally limited to prescribing lethal medications. The physician may play a role in diagnosing an illness, in determining mental capacity and mental health, and even in attending the death, but the responsibility of taking the lethal dose is the patient's. In the United States the term "euthanasia" is used in both the Dutch and the German senses and the meaning of the term can shift in a discussion, often without any clarification.

"Slippery Slope" Arguments Opponents to legalizing physician-assisted dying and physicianassisted suicide argue that if direct killing is legalized on request of a competent person, this right may be expanded to incompetent patients and may even lead to involuntary euthanasia. Opponents of euthanasia point to modern medical practice and the history of the living will as an example of how people are encouraged to die. They point out that, even in the United States, which only permits passive euthanasia such as the removal of life-sustaining medical treatment, the patient's desires are often ignored and coercion can be a factor. They state that patients are usually only told about the "pull the plug" type of advance medical directives, and that the contents of the document are often misunderstood by the patient. Further, they argue that patients are often in a potentially coercive period of time at admission to a health care facility when typically such directives are discussed, perhaps for the first time. People who worry about euthanasia also state that the elderly and disabled are not always respected as in other cultures and their lives may not seem to have as much "value" as other, "more productive" members of society. Financial considerations, such as the extremely high cost of providing care for permanently comatose individuals or for acute or "high-tech" interventions at the end of life when such treatment may not result in a significant increase in the length and quality

2 2 0 • Appendix C of life can also add to the tension and may lead to an atmosphere that encourages involuntary euthanasia. Such "slippery slope" arguments have led some individuals to execute "protective medical decisions documents," which specifically define and prohibit euthanasia. Such a document usually also directs that food and water be provided "unless death is inevitable and truly imminent" so that the effort to sustain life "is futile" or the person is "unable to assimilate food and fluids."

Court Cases on Physician-Assisted Suicide Court cases concerning physician-assisted suicide will affect all citizens of the United States. On the West Coast, in 1996, the 9th circuit court of appeals struck down Washington State's ban on physician-assisted suicide, declaring that the terminally ill have a right to a "dignified and humane death." The court indicated that the state's duty to preserve life is outweighed by the right to control "the time and manner of one's death" and that "a competent, terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incompetent." The ruling further stated that in addition to physicians, parties "whose services are essential to help the terminally ill patient obtain and take" medication that will hasten death, "or the persons who help the patient to his death bed and provide the love and comfort so essential to a peaceful death" are covered by the decision and are not subject to prosecution. On the East Coast, the 2nd circuit court also ruled in favor of physician-assisted suicide, on the basis that certain terminally ill patients who requested physician-assisted suicide to end their lives were not provided "equal protection" under the law as other patients who are permitted by law to request physicians to remove unwanted lifesustaining medical treatment to end their lives. The U.S. Supreme Court granted certiorari (review) of the two cases. The Court heard arguments from both sides, and ultimately made a decision that affects the issue of physician assistance for dying patients across the nation. The Supreme Court unanimously upheld laws in New York State and Washington State that made it a crime for physicians to provide life-ending drugs to mentally competent, terminally ill patients who no

Euthanasia, the "Slippery Slope," and the Courts • 221 longer wanted to live. Chief Justice Renquist wrote both opinions. In Washington v. Glucksberg the Supreme Court held that Washington's prohibition against causing or aiding a suicide does not violate the due process clause of the Constitution of the United States. The Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause and that the constitutional requirement that the state's assisted suicide ban be related to legitimate government interests was unquestionably met. The Court found that the interests included prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain, depression, or other mental disorders; protecting the medical profession's integrity and ethics and maintaining the physician's role as the patient's healer; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia. In the New York case, Vacco v. Quill, the Supreme Court addressed the issue whether the state's prohibition on assisting suicide violated the equal protection clause of the U.S. Constitution. The Court held that it did not. It found that the state's recognizing and acting on the distinctions between refusing lifesaving medical treatment and assisted suicide—including prohibiting intentional killing and preserving life; preventing suicide; maintaining the physician's role as the patient's healer; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward euthanasia—are valid and important public interests. The Supreme Court decision made it clear, however, that dying patients can obtain palliative care to obtain relief from their suffering. Justice O'Connor, in her concurring opinion, noted that in both states a patient who is suffering from a terminal illness and is experiencing great pain has no legal barrier to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. Justice Stevens, in his concurring opinion, notes that the American Medical Association unequivocally endorses the practice of "terminal sedation"—the administration of sufficient dosages of pain-killing medication to terminally ill patients to protect them from excruciating pain even when it is clear that the time of death will be advanced.

2 2 2 • Appendix C The Supreme Court also made it clear that the decision also permits the debate about the morality, legality, and practicality of physicianassisted suicide to continue. Justice O'Connor stated in her concurring opinion that "(e)very one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who might seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues." Justice Stevens, in his concurring opinion, stated that "(t)here remains room for vigorous debate."

Appendix D

Hiring a Caregiver

Finding good home caregivers takes work and people are often disappointed. Many people have a hard time finding a qualified and trustworthy caregiver at an affordable price. Further, there are increasing reports of caregiver abuse, neglect, theft, and financial exploitation. While there can be problems with any caregiver, professional home caregiver agencies normally have the resources to provide insured, trained, and preapproved caregivers. Such agencies can usually provide short-notice and continuous care with backup caregivers as necessary. One major drawback, of course, is the cost. If you hire your own caregiver, you may save some money since you will be able to cut out the built-in overhead costs associated with a business enterprise and its profit objective. Even so-called nonprofit agencies still need to support their structure and make money to continue in existence. If you do utilize a professional service, check to see if: • • • •

• • • •

the agency is licensed and certified (Medicare/Medicaid) the agency has a record of complaints the agency/supervisor is available by phone at all times the agency has written policies and procedures pertaining to patients' bill of rights, services, costs, payment plans, malpractice/ injury, thefts, unacceptable behavior, and disputes employees are insured and bonded employees are trained employees are screened for health, background, and criminal records references for employees are available

223

224 • Appendix D

Although the cost of hiring a private caregiver may be significantly lower than utilizing a professional caregiver agency, recall that Medicare/Medicaid will only reimburse for eligible services provided by a certified home health care agency. This may be true of most insurance policies. Hiring your own caregiver may also have other benefits. You become the employer and thus you can demand greater loyalty and provide greater direction to an employee you select yourself. While there are advantages to this, you also take on the responsibility for hiring, paying, and supervising the caregiver. The responsibilities include those typically associated with running a business that hires employees. First, you have to find your own qualified caregiver. This may mean advertising in a newspaper or on a bulletin board, interviewing candidates, checking references, checking drivers' licenses and medical records, and even performing abuse/criminal record background checks. You will need to get permission/privacy waiver documents for some of these checks. Second, you have to enter into an employment agreement. This usually includes a written contract that contains such matters as the job description, scheduling work, backup help, time off, wages, meals, use of automobile and other equipment, work rules (involving alcohol use, smoking, personal phone use), and termination policy, including prior notification, if any. If you do not have a written agreement, you may be setting yourself up for trouble. Third, you have to supervise and manage the caregiver. This usually includes providing necessary introductions, training, orientation, demonstration of preferred techniques, and testing emergency responses. It also includes providing appropriate discipline, including dismissal, reporting to protective services agencies, and even filing criminal charges. Fourth, you have to comply with federal, state, and local laws, regulations, and ordinances. These include legal eligibility, immigration assurance, wage and hour compliance, employment/labor practices, and tax and insurance matters. It also includes obtaining tax identification numbers, withholding federal and state taxes, and paying Social Security/Medicare (FICA) and unemployment taxes. It further includes obtaining workers' compensation and liability insurance. You will be required to fulfill federal and state record-keeping requirements on each employee to ensure compliance with all of these matters.

Hiring a Caregiver • 2 2 5

Even if you hire a caregiver for a short period of time, you will be required to comply with federal and state "nanny taxes"—employment taxes for household employees—if wages to any caregiver exceed $1,000 per year. At the end of this overview is a "Checklist for Employers" that will give you a head start in the process of engaging caregivers. The Internal Revenue Service (IRS), state tax offices, and federal and state labor offices can provide you with valuable information, instructions, and required forms for employers. The Immigration and Naturalization Service (INS) can provide information about work registration requirements and legal documentation. Do not forget, your attorney can also assist you. You may be tempted to engage a so-called independent contractor to try to get the best of both worlds—avoiding the extra cost of a professional caregiver agency while also avoiding the effort of employing a caregiver. You should be aware that employment and tax laws are written in such a manner to presume that a person is an employee and not an independent contractor if the person engaging him or her can control what is done, when it is done, and how it is done. If you have the right to control the method and result of the service, you are probably an employer. It does not matter whether the person is full- or part-time. In Hawai'i, every individual or organization that becomes "an employing unit" must file a status report (Form UC-1, "Report to Determine Liability") with the Unemployment Security Division within twenty days after hiring an employee. You may call the Business Action Center of the Department of Labor and Industrial Relations, which will supply you with forms for registering your business. Also, the Internal Revenue Service has a very helpful guide (Publication 926—Household Employer's Tax Guide) that you should read before hiring a caregiver. There are agencies that can help you fill out forms and file necessary taxes for a fee. Of course, your attorney can answer your questions and assist you in this matter. Whether you engage a professional caregiver agency, hire an employee, or engage an independent contractor, make certain that you check with your insurance agent to ensure that your homeowner's, automobile, and other liability policies cover the caregiver in your home. If you are going to permit or request the caregiver to drive your automobile, check to make sure that he or she has a valid driver's license and whether that person has been convicted of serious traffic offenses such as driving under the influence. Always check with your

2 2 6 • Appendix D automobile insurer to see if your policy covers the caregiver. Further, look into having the caregiver bonded for your protection. CHECKLIST FOR EMPLOYERS A. RECRUITING —Nondiscriminatory advertising —Personal information permission/privacy waiver —Prior employment reference check —Personal reference check —Credit check —Medical/health check (including contagious diseases) —Abuse report check —Criminal records history check —Interview questionnaire B. EMPLOYMENT AGREEMENT —Enforceable legal contract format —Job description —Work schedule —Backup help schedule —Time off schedule —Wages —Meals —Use of automobile/equipment —Work rules (e.g., smoking, alcohol, personal phone calls, visitors, etc.) —Acceptance and exchange of gifts (prohibition with person cared for to avoid theft/undue influence questions?) —Termination policy C. SUPERVISING —Introduction to person cared for, family, neighbors, professionals —Training (content, resources, materials, courses) —Orientation to job, home, support facilities, and responsibilities —Demonstration of preferred manner of commonly performed tasks —Testing of emergency notification and substantive procedures —Performance reports —Disciplinary options —Counseling

Hiring a Caregiver • 2 2 7

—Warning —Reporting to Adult Protective Services —Reporting to police —Dismissal D. TAXES, LAWS, REGULATIONS, INSURANCE —U.S. citizenship or legal authorization to work—INS Form 1-9 —-Minimum wage determination —Federal Income Tax Withholding—1RS Form W-4 —Federal Wage and Tax Statement—1RS Form W-2 —State Wage and Tax Statement—1RS Form W-2 —Employer Identification Number Form—SS-4 —Federal Insurance Compensation Act (FICA)—1RS Form 1040, Schedule H —Social Security —Medicare —Federal Unemployment Tax Act (FUTA)—1RS Form 1040, Schedule H —State Unemployment Tax—Form UC-86 —Workers' Compensation/Temporary Disability Insurance —State of Hawai'i Business Registration—Form UC-1 —Employee Records —Name —Address —Phone Number —Date of Birth —Social Security Number —Driver's License Number —Date hired —Date discharged —Dates and amounts of wages —Copies of contracts, other agreements, records checks, performance reports, termination notice, other communications —Copies of tax, FICA, insurance documents, and filed forms —Homeowners', automobile, liability insurance policies —Employee bond The federal Internal Revenue Service and Social Security Administration as well as the state Departments of Taxation and Labor can provide valuable information relating to hiring caregivers and other household employees.

Appendix E

Na Kupuna Unlike state and federal laws of probate and inheritance, the Hawaiian Homes Commission has its own set of rules provided by law for Hawaiian Home Lands leasehold succession. If you are a Native Hawaiian and own a Hawaiian Homes homestead lease, remember that a will is not sufficient to pass the leasehold to your heirs. You must complete a "Designation of Beneficiary Form" provided by the Department of Hawaiian Homes Lands in order to name your designee. It is available at the following address: Department of Hawaiian Homes Lands 335 Merchant Street Office of Successorship, Room 332 Honolulu, HI 96813

Requirements Before registering for Hawaiian Homes Lands leases, you must meet two requirements: you must be at least eighteen years old and have a certain blood quantum. Native Hawaiians are defined as those with 50 percent or more native blood. Do not confuse this definition with that of the Office of Hawaiian Affairs. OHA defines those with any quantum of Hawaiian blood as "Hawaiians."

Hanai Hanai, or the Hawaiian system of adoption, is another unique feature that affects inheritance. Hanai is rooted in the Hawaiian family culture. 228

Na Kupuna • 229 Since Hawaiians did not have a written language, things were handed down through word of mouth and the hanai child could inherit by word of mouth. When Western laws were adopted, hanai was not recognized as formal adoption and, as a consequence, hanai children did not have the same rights of inheritance as natural or adopted children and could not inherit as heirs under a will unless they were specifically named. The following section, contributed by the Department of Hawaiian Home Lands, presents a brief history of the Hawaiian Homes Commission Act. Included is a practical nuts-and-bolts guide on how to apply for a leasehold and for a successorship to Hawaiian Homes leases after obtaining a lease.

Applying for Hawaiian Home Lands Leases and Successorship to the Leases* During the late 1800s and early 1900s, widespread concern for the plight of the Hawaiian people emerged. Due to political and economic factors that had encouraged increasing numbers of Hawaiian people to relocate into urban areas, the native Hawaiian lifestyle changed dramatically. The shift to an urban lifestyle caused serious disruption to the Hawaiian people, who were accustomed to living on the land which had traditionally provided food, shelter, and the economic means of livelihood. The unaccustomed urban lifestyle led to an economically depressed and internally disorganized Hawaiian population. Alienation from the traditional means of economic support, disease, sickness, and poverty contributed to the decline of the Hawaiian population. The decline is dramatic when comparing the number of full-blooded Hawaiian population in 1919 to the number in 1926. From 1919 to 1926, the number of full-blooded Hawaiians declined 84 percent, from 142,650 to 22,600.

Hawaiian Homes Commission Act With the support of U.S. Senator John Wise, Hawai'i's delegate to Congress Prince Jonah Kuhio Kalaniana'ole, and leaders in the Hawaiian

"Courtesy of Kali Watson, Chairman, Hawaiian Homes Commission and Lee Takara, Hawaiian Homes Commission Lease Assistant.

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• Appendix E

community, Congress enacted the Hawaiian Homes Commission Act (HHCA) of 1820. The HHCA provided for the rehabilitation of the native Hawaiian people through a government-sponsored homesteading program. Approximately 188,000 acres of "available" public lands were placed under the jurisdiction of the Hawaiian Homes Commission (HHC) to be leased to Native Hawaiians having 50 percent or more Hawaiian blood, for $1.00 a year for ninety-nine years. These lands were to be held in trust for the Hawaiian people. The HHCA was later adopted as a provision of the Hawai'i state constitution, which assigned the administration and management responsibility of the trust to the state. In the State of Hawai'i, the Department of Hawaiian Home Lands (DHHL) performs the day-to-day administrative and managerial functions of the program. Congress, however, retains certain rights in administering the HHCA.

Who May Apply for a Hawaiian Home Lands Lease? Native Hawaiians who are at least eighteen years of age and who have 50 percent or more native blood may apply for a residential, agricultural, or pastoral lease at any Hawaiian Home Lands District Office.

Hawaiian Blood Quantum Proof of Hawaiian blood quantum is based on the person's biological parents' bloodline as determined by examination of the birth, marriage, or death records from the Vital Statistics Office of the Department of Health submitted by the applicant. Other records that may be used to complete the genealogy are available from archives, courts, the Church of Jesus Christ of the Latter Day Saints Family History Center, the military, schools, doctors, hospitals, funeral homes, graveyards, federal census records, testimony, oral history, family bibles, and other sources. (The DHHL office has a book of secondary sources that may also be useful.)

Designating a Successor to Application Rights Pursuant to the Department's administrative rules, as amended, an applicant, upon death, may pass on his or her application rights to his or

Na Kupuna • 231 her spouse or designated child(ren) who have at least 50 percent Hawaiian blood. Although Hawaiians have practiced the informal or hanai system of adoption, a hanai child may not be eligible to be named as a successor. The applicant may only designate (a) biological or legally adopted child(ren) who have at least 50 percent Hawaiian blood.

Fifty Percent or More Blood Quantum If an applicant fails to designate a successor, his spouse and child(ren) who are at least eighteen years of age and have at least 50 percent Hawaiian blood, may, after notifying and confirming the applicant's death to the DHHL, submit a written claim to the application rights within 180 days of the death of the applicant. From the qualified claimants, the HHC will designate a successor-applicant. An unqualified spouse may also designate a qualified child to succeed to the application rights. As homestead lots become available, applicants from the respective waiting lists are invited to lot selection meetings. The award process is thus initiated and ends with the lessee signing his or her lease award.

Who May Succeed to a Hawaiian Home Lands Lease? The Hawaiian Home Lands lease grants to the lessee the right to use the homestead lot according to the terms and use stated in the lease. He or she may receive residential land to be used to build a home or agricultural and pastoral land on which he or she may build a home and support his or her family by ranching, grazing, farming, and other agricultural or pastoral activities. The lessee's interest may be passed on to a qualified designated successor(s) per Section 209 of the HHCA.

Twenty-Five Percent or More Blood Quantum A lessee may designate his or her spouse as successor or child(ren) who have 25 percent or more native Hawaiian blood on the "Designation by Hawaiian Home Lands Homestead Lessee" form available from the Department. As stated previously, although Hawaiians have practiced the informal or hanai system of adoption, only (an) eligible legally adopted child(ren) may be designated as a successor. A lessee may

232

• Appendix E

designate other family members, including his or her father, mother, the widows or widowers of children, grandchildren, brothers and sisters, widows or widowers of brothers and sisters, nieces and nephews, provided these persons have at least 50 percent Hawaiian blood. The designation was expanded in 1994, when Governor John Waihee signed into legislation a state bill that provides for the designation of a grandchild of 25 percent or more native blood. This bill was approved by Congress in 1997.

If No Successor to the Lease If a lessee does not have a spouse or children who qualify (with at least 25 percent Hawaiian blood quantum) to succeed to the lease, the lessee may designate one or more of them to receive the net value of the leasehold improvements and growing crops, if any. The Department will retain an independent appraiser to value the improvements and growing crops and calculate the proceeds. The lease will revert back to the Department's inventory for awarding to the next qualified applicant from the Department's waiting list. To ratify a lessee's designation, the Department will verify the successor's qualifying native blood quantum from documents submitted by the lessee. Minor children may be named to succeed to a lease. Additionally, the Department encourages the lessee to consider naming not only a primary but also a secondary successor to his or her lease. In the event the primary successor dies before the lessee and the lessee has not submitted another designation, the secondary successor will be available to succeed to the lease.

Failure to Designate a Successor If a lessee fails to complete and submit his or her successorship designation, the HHC is authorized to cancel the lease or designate a successors) from qualified relatives or the deceased lessee. Upon the death of a lessee who fails to designate a qualified successor, the Department will publish legal notices to which the family members may respond with their claim to the lease. From the claimants, the HHC may designate a co-successor(s) to the lease. Upon notification and confirmation of the lessee's death, the Department will process the transfer of the lease to the successor.

Na Kupuna • 2 3 3

Lease Up to 199 Years Initially, the lessee is awarded a ninety-nine-year lease, which the Department may extend for an additional one hundred years. To assure that the lessee's legacy continues to benefit his or her family, the lessee should have a valid designation form in his or her file at all times. It is highly recommended that the lessee complete and submit to HHC a designation of successorship form along with the birth certificates of the persons named. As the rules applicable to homestead leases change occasionally, it is good practice for the lessee to update or verify that his designation form is complete.

For Assistance For assistance or questions concerning an application or lessee successorship, please contact the District Office in your area, the O'ahu Applications Office or the O'ahu District Office: East Hawai'i District Office West Hawai'i District Office Kaua'i District Office Maui District Office Moloka'i District Office O'ahu Application Office

935-5575 885-7091 241-3329 243-5248 567-6104 586-3830 or 1-800-468-4664, extension 63830 586-3827 or 1-800-468-4644, extension 63827

Appendix F

Probate and the Distribution of Property upon Death

Significant changes to the Uniform Probate Code were made effective January 1,1997, in Hawai'i. Under the new probate code an estate may be opened either formally or informally and closed either formally or informally. Special procedures for small estates, which will be discussed later, are also included in the new code and make distributions of assets under $60,000 even easier. An estate is opened for the purpose of "proving a will" in order to distribute the assets of a deceased person in accordance with its provisions or for the purpose of proceeding on the basis of intestacy. The basic concept of the probate code now is that estate administration is largely a private process involving the personal representative, "successors" of a deceased, and others who may be interested in the estate. The court is now involved only if it is necessary to adjudicate conflicts among the parties or to clarify matters pertaining to the estate. Unless a will directs supervised administration of the estate or the court so directs, administration of the estate is to be unsupervised. Whether formal or informal, probate proceedings must be brought within five years from the date of death of an individual.

Intestate Succession The decedent's estate may be distributed through the probate process in accordance with his or her will. Any part of the decedent's estate not

234

Probate and the Distribution of Property Upon Death • 235 effectively disposed of by a will passes by intestate succession to the decedent's heirs, except as may be modified by a decedent's will. A decedent by will may expressly exclude or limit the right of an individual or a class to succeed to property of the decedent passing by intestate succession. Intestate succession is different, depending on whether or not a decedent was survived by a spouse or reciprocal beneficiary.

Intestate Share of Spouse or Reciprocal Beneficiary The intestate share of a decedent's surviving spouse or reciprocal beneficiary is: (1) The entire intestate estate if: (A) No descendant or parent of the decedent survives the decedent; or (B) All of the decedent's surviving descendants are also descendants of the surviving spouse or reciprocal beneficiary and there is no other descendant of the surviving spouse or reciprocal beneficiary who survives the decedent; (2) The first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; (3) The first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse or reciprocal beneficiary and the surviving spouse or reciprocal beneficiary has one or more surviving descendants who are not descendants of the decedent; or (4) The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse or reciprocal beneficiary. Share of Heirs Other Than Surviving Spouse or Reciprocal Beneficiary Any part of the intestate estate not passing to the decedent's surviving spouse or reciprocal beneficiary under Section 560:1-102, or the entire

2 3 6 • Appendix F intestate estate if there is no surviving spouse or reciprocal beneficiary, passes in the following order to the individuals designated below who survive the decedent: (1) To the decedent's descendants by representation; (2) If there is no surviving descendant (1997 law includes provisions for deceased minors), to the decedent's parents equally if both survive, or to the surviving parent; (3) If there is no surviving descendent entitled to inherit, to the descendants of the decedent's parent, or either of them by representation; and (4) If there is no surviving descendant entitled to take, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relative in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

Informal Opening Informal opening of an estate is a "summary," non-notice proceeding with the court registrar instead of the probate court. Informal proceedings are meant to be simple and fast. Accordingly, they should not necessarily require the services of an attorney and should be inexpensive. A personal representative can collect the assets of an estate, pay taxes, claims, and expenses of the estate, make an accounting to the successors, and make the distribution of the assets without ever having to go to court. In an informal proceeding, however, "testacy status" is open to attack for five years after the date of death and the proceeding may be stopped by a subsequent petition for probate of a different will. It may also be superseded by a formal petition for opening the estate. Under most circumstances informal proceedings are unsupervised but may be closed either informally or formally. If necessary, the informally ap-

Probate and the Distribution of Property Upon Death • 2 3 7 pointed personal representative may obtain court protection or direction. Informal proceedings can be initiated after a five-day waiting period following a death.

Formal Opening Formal opening of an estate includes a court adjudication of testacy status, whether there is a will or not, and of the validity of any existing will. Formal openings will probably be necessary if there are several wills in question, if there is a holographic will, or if there is a dispute as to who should serve as a personal representative. Formal opening procedures are final as to the probate of the will or as to the determination of heirs. In a formal proceeding full notice to interested parties is required. A hearing is held to formally prove the will or determination of the heirs. Even though formal proceedings are more complex than informal proceedings, an estate can still be opened within several weeks after a death if there are just a few beneficiaries, if there are no questions raised about the mental capacity of a testator when the will was signed, if waivers are obtained from interested parties, and if notice to interested parties is given promptly. "Letters testamentary" are issued to personal representatives who are appointed through either formal or informal proceedings. They have full powers under either proceeding. If it is necessary for a representative to qualify and act prior to the qualification of a personal representative, a "special administrator" may be appointed. Since informal openings are so simplified, however, it may be easiest to informally open an estate and to quickly appoint a personal representative and then, if appropriate, formally open the estate. For many, a swift informal opening of an estate, followed by protections and directions of a formal proceeding, as deemed necessary, and a formal or informal closing would be possible to utilize the best of informal and formal options. This is called "in and out" court involvement.

Informal Closing Unless a formal closing is desired, a personal representative may file a "closing statement" and close the estate informally. Such closings are not permitted in cases of unsupervised administration. The personal representative files a "verified statement" stating that he or she has

2 3 8 • Appendix F fully administered the estate. He or she provides an accounting to the distributees of the estate and to any unpaid creditors, if there are any. The distributees would take the assets subject to any unsatisfied creditor claims. Also, an informal closing would not protect against a will that is subsequently discovered. Six months after the statement is filed, the personal representative normally is protected against claims of both the distributees and creditors. Three years after the date of death or one year after the date of distribution of assets, the distributees are protected from any claims of creditors. The appointment of the personal representative terminates one year after the filing of the closing statement unless there are continuing proceedings concerning the estate. The personal representative may ask for a certificate from the registrar indicating that any surety, lien, or property given to secure the personal representative's obligation to the estate is discharged.

Formal Closing Formal closings can be used with an estate that is either supervised or unsupervised and can be used with an estate that has been opened formally or informally. For example, if an estate was opened informally, the personal representative may wish to close the estate formally to "prove" a will or to determine who the heirs are, or to approve a final accounting and distribution of the estate. A formal closing involves full notice to interested parties and leads to a complete settlement of the estate. All matters brought before the court are formally adjudicated, and the personal representative is formally discharged and protected from further claims or demands of any person who is given notice of the procedure.

Homestead Allowance, Exempt Property, and Family Allowance A decedent's surviving spouse or reciprocal beneficiary is entitled to a homestead allowance of $15,000. If there is no surviving spouse or reciprocal beneficiary, and there are minor or dependent children, this $15,000 is divided equally among these children. This allowance is in addition to any share passing to the surviving spouse or reciprocal ben-

Probate and the Distribution of Property Upon Death • 2 3 9 eficiary or minor or dependent children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. In addition to the homestead allowance, the decedent's surviving spouse or reciprocal beneficiary is entitled from the estate to a value, not exceeding $10,000, in household furniture, automobiles, furnishings, appliances, and personal effects. This is in excess of any security interests in such property. If there is no surviving spouse or reciprocal beneficiary, the decedent's children are entitled jointly to the same value. In addition to homestead allowance and exempt property, the decedent's surviving spouse or reciprocal beneficiary and, under prescribed conditions, the minor children, are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration of the estate. This allowance cannot continue for more than one year, however, if the estate is inadequate to discharge allowed claims against the estate.

Elective Share of Surviving Spouse or Reciprocal Beneficiary The probate code gives the surviving spouse or reciprocal beneficiary the option to take under the provisions of the will or to elect a certain share of the deceased spouse's or reciprocal beneficiary's estate. Under the new probate code, the elective share of a spouse or reciprocal beneficiary even includes property that, prior to January 1,1997, used to be excluded from probate, such as property held in trust. Under the new probate law, effective January 1, 1997, the elective share of a surviving spouse or reciprocal beneficiary has been dramatically increased since it no longer is dependent on the old concept of "probate estate" of the deceased spouse or reciprocal beneficiary and since it provides for a larger share of the assets. A new term, the "augmented estate" is used to describe the portion of the deceased spouse's or reciprocal beneficiary's assets that are now subject to election. A key feature of the elective share is "the longer the marriage, the greater the elective share." The purpose of the elective share is to provide the surviving spouse or reciprocal beneficiary adequate assets on which to live. Determining the new elective share is very technical and can involve a whole set of complicated provisions. Basically the spouse or reciprocal beneficiary is entitled to all jointly held and beneficiary designated property, plus the greater of:

2 4 0 • Appendix F (a) if the spouse or reciprocal beneficiary died intestate: (i) all of the estate, if no parent or descendant survives the spouse or reciprocal beneficiary. (ii) the first $200,000 plus three-fourths {%) of the balance, if a parent but no descendant survives. (iii) the first $150,000 plus one-half (H) of the balance if: (A) no parent survives. (B) one or more descendants who survive are also a descendant of the surviving spouse or reciprocal beneficiary, and (C) the surviving spouse or reciprocal beneficiary has one or more surviving descendants who are not descendants of the deceased spouse or reciprocal beneficiary. (iv) the first $100,000, plus one-half ('A) of any balance if one or more of the spouse's or reciprocal beneficiary surviving descendants are not descendants of the surviving spouse or reciprocal beneficiary. (b) what the deceased spouse or reciprocal beneficiary left in his or her will, trust(s), and other estate planning documents. (c) what a spouse or reciprocal beneficiary is entitled to by exercise of an elective share, which extends to a spouse's or reciprocal beneficiary's "augmented estate." The size of the augmented estate involves a series of provisions and: (i) includes most assets owned by both spouses or reciprocal beneficiaries. (ii) involves a percentage share that increases with the length of marriage or the reciprocal beneficiary and the decedent were in a reciprocal beneficiary relationship ranging from 3 percent after one year of marriage up to 50 percent for a fifteen-year and over marriage. (iii) may be diminished by any property received by reason of survivorship or beneficiary designation. A spouse or reciprocal beneficiary can "contract away" his or her elective share, but since this is usually such a valuable asset, great caution should be taken in considering this option.

Small Estates Although transfers of assets via letters of administration provided for in the probate process are rather simple under the new probate code,

Probate and the Distribution of Property Upon Death • 2 4 1 there are even quicker collection mechanisms for small estates that avoid all necessity to even visit the probate court.

Summary Administration and Closing by Personal Representative If it appears from the inventory that the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative can disburse and distribute the estate to the persons entitled to it without notifying creditors and file a closing statement. Provided that the estate is not being administered by supervised personal representatives and provided that the court does not prohibit it, closing the estate and notifying any creditors is accomplished by filing with the court, at any time after disbursement and distribution of the estate, a "verified" statement as provided for in the probate code.

Collection of Personal Property by Affidavit If the gross value of an estate is $60,000 or less, and if it does not involve real estate, "small estate affidavit proceedings" may be utilized to entirely bypass any formal or informal court proceedings. Such an affidavit is often used to close a bank account or to transfer items of personal property. It can also be used to transfer a motor vehicle. Thirty days after an individual's death, any person claiming to be the "successor" of the decedent may present an affidavit to any person indebted to the decedent or having possession of tangible personal property of the decedent. The person presenting the affidavit to the person or institution holding the property can then obtain legal ownership of the property without having to go through probate and the person or institution that turned over the property is released of liability for having done so. If the deceased had made a living trust and properly transferred property into it, there will generally be no need for probate. However, the services of an attorney may still be necessary to draw up deeds and other documents to transfer property to heirs and beneficiaries.

242

• Appendix F

Clerk of Court Administration of Estates under $60,000 If a person dies leaving property in this state of a total value not exceeding $60,000, and a personal representative of the estate has not been appointed in the state, the clerk of the court in the judicial circuit in which the decedent was residing or domiciled at the time of the decedent's death or left property may, upon a verified petition of the clerk or of any interested person, obtain an order authorizing the clerk to administer the estate, and, as the personal representative, the clerk shall collect and receive the property and administer the same.

Joint Account Ownership during Lifetime A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent. A payment upon death (POD) account belongs to the original payee during the payee's lifetime and not to the POD payee or payees; if two or more parties are named as original payees, during their lifetimes rights as between them are governed by the same rules pertaining to joint accounts. Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during the trustee's lifetime, and if two or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by the rules pertaining to joint accounts. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.

Right of Survivorship Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interest outlined in the previous section on joint account ownership augmented by an equal share

Probate and the Distribution of Property Upon Death • 2 4 3 for each survivor of any interest the decedent may have owned in the account immediately before the decedent's death; and the right of survivorship continues between the surviving parties. If the account is a POD account, (1) Upon the death of one of two or more original payees the rights to any sums remaining on deposit are governed by the same rules pertaining to joint accounts as previously discussed. (2) Upon the death of the sole original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the POD payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more POD payees survive, there is a right of survivorship in the event of death of a POD payee thereafter. If the account is a trust account, (1) Upon the death of one of two or more trustees, the rights to any sums remaining on deposit are governed by the same rules pertaining to joint accounts as previously discussed, and (2) Upon the death of the sole trustee or the survivor of two or more trustees, any sums remaining on deposit belong to other person or persons names as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear evidence of a contrary intent; if two or more beneficiaries survive, there is a right of survivorship in event of death of any beneficiary thereafter. In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedent's estate. A right of survivorship arising from the express terms of the account or under this section, or a beneficiary designation in a trust account, or a POD payee designation, cannot be changed by a will.

Set Aside of Transfers of Multiple-Party Accounts A transfer to a survivor of a multiple-party account can be set aside in the event the assets in the hands of the personal representative of the deceased party are insufficient to pay taxes, expenses of administration, and homestead and family allowances, described previously. Within a two-year period following the death of the deceased party, the

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• Appendix F

personal representative, the surviving spouse, reciprocal beneficiary or someone acting for a dependent or minor child of the deceased may apply for an accounting for the deceased party's net contribution to the account to the extent necessary to discharge the insufficiency.

Legal Terms Used in Distributing an Estate Representation; per capita at each generation. If an applicable statute or a governing instrument executed after the effective date of this section calls for property to be distributed "by representation" or "per capita at each generation," the property is divided into as many equal shares as there are: (1) Surviving descendants in the generation nearest to the designated ancestor that contains one or more surviving descendants; and (2) Deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date. Per stirpes. If a governing instrument executed after the effective date of this section calls for property to be distributed per stirpes, the property is divided into as many equal shares as there are: (1) Surviving children of the designated ancestor; and (2) Deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.

Appendix G

Selected Federal Benefits Programs Social Security Social Security is an insurance plan administered by the federal government. It covers everyone who works and contributes to the program by paying FICA taxes. It pays benefits to workers when they become disabled, blind, or reach retirement age (sixty-two years or older). Dependents (such as a spouse or children) of retired, disabled, or deceased workers may also be eligible to receive Social Security benefits. Examples are unmarried children under age eighteen (or, if a full-time student, age twenty-two in certain situations), a surviving spouse, and dependent parents. Working people and their spouses who have earned enough "quarters" qualify to receive Social Security benefits when they retire or if they become disabled. A work quarter is earned when a person receives a certain amount of wages during a three-month period and a Social Security contribution is withheld. You will only need one Social Security number during your lifetime. If you change your name, have the Social Security office change it on your card, too. If you do not have a Social Security number, you should apply for one at least six weeks before you need to use it. When you apply for Social Security benefits, you should have several documents of proof with you. If you don't have them yet, apply anyhow without delay. You need: 1. Your own Social Security card or a record of your number. (If your claim is on another person's record, you'll need that person's card or record.) 245

246

Appendix G

2. Proof of your age—a birth certificate or a baptismal certificate. 3. Your marriage certificate if you're applying for spouse's or widow's benefits. 4. Your children's birth certificates if you're applying for them. 5. Your W-2 forms for the past two years or a copy of your last two federal income tax returns if you're self-employed. 6. If you're applying for benefits as a dependent parent of a deceased son or daughter, or as a dependent grandchild, you'll need proof that you were being supported by the worker. Once you have completed the paperwork, the caseworker will decide whether or not you are eligible for benefits and how much you can receive. You will receive notice of the decision in the mail. Never throw away any Social Security notice that comes to you. If there is something you do not understand, call the office, ask your lawyer, or take the notice to the Social Security office yourself or through your legal representative. Also, if the amount of your benefit check looks too large or too small, notify the office immediately. You are required to pay back overpayments. Lastly, the Social Security office should be informed when the recipient dies. If you feel that a decision made on your claim is not correct, you may ask the Social Security Administration to reconsider it. If, after this reconsideration, you still disagree with the decision, you may ask for a hearing by an administrative law judge of the Office of Hearings and Appeals. And, if you're not satisfied with the hearing decision, you can seek a review by the Social Security Appeals Council. Finally, if you disagree with the Appeals Council you may take your case to the federal courts. You can appeal on your own behalf, you can have someone else accompany you to the hearing, or you can hire an attorney to represent you. Your representative may charge you a fee for his or her services, but any fees must be approved by the Social Security Administration. Your representative must file either a fee agreement or a fee petition with the Social Security Administration, and the fee cannot be more than the amount approved by the Social Security Administration. You can call the Social Security Office or go down in person. Currently, if you are between the ages of sixty-two and sixty-five and meet general eligibility requirements, you may claim early, but reduced, retirement benefits. If you wait until age sixty-five you will receive full benefits based on your Social Security work record. Under recent legislation, if you were born in 1938 or later, the full retirement age for Social Security will increase in gradual steps from sixty-five to sixty-

Selected Federal Benefits Programs • 247 seven. You can elect to receive higher benefits if you wait until you are seventy. You should know that your Social Security benefits can be reduced if you still work. In 1997, for example, beneficiaries under sixty-five could earn up to $8,280 per year without having any benefits withheld. One dollar of Social Security benefits is withheld for every $3 earned over this amount. For people between the ages of sixty-five and sixtynine, the limit was $13,500. People over the age of seventy can earn as much money as they want or can and not have their benefits reduced. Even if you do not have a work record you may be eligible as a dependent spouse or a "deemed spouse" of a deceased insured. A "deemed spouse" must have had a good faith marriage ceremony with an insured that would have resulted in a valid marriage except for a legal impediment. Hawaii's reciprocal beneficiary law does not have an effect on federal law. To be eligible for dependent spouse benefits, you need to be at least sixty-two years of age or be caring for a child who is under sixteen or disabled. To apply, you will need your spouse's Social Security number, birth, marriage, and death certificates. You will need your own Social Security number and birth certificate. For dependent children's benefits, you will need their birth certificates and their Social Security numbers. If you are divorced but had been married at least ten years, you may be eligible for dependent spouse benefits. Parents of the deceased may be eligible for lump sum benefits. If you are sixty-five or older, you may be eligible for Medicare, either based on your own Social Security record or on that of your spouse. Remember: Social Security benefits are not automatic, and you must apply for them. As with other federal benefit programs, Social Security beneficiaries are encouraged to sign up for its direct deposit program through which benefits are sent directly to a bank or other financial institution. Under a new law, those who have not yet signed up have until January 1, 1999, to sign up. If they do not sign up, procedures will be in place to send their checks directly to a financial institution. Apparently, Congress has decided that no paper checks will be sent after that date.

Supplemental Security Income Supplemental Security Income (SSI) is a federal public benefits program of cash payments to needy aged, blind, or disabled persons who are unable to work and do not have enough money to live on. SSI may be paid to a person in addition to Social Security benefits. Unlike Social

248 • Appendix G Security, SSI is not based on work quarters earned. Monthly payments are based on need and are made to persons who are sixty-five or older, or blind, or disabled. If you receive SSI you will generally be eligible for other assistance such as food stamps. You may be eligible for food stamps, however, even if you do not receive SSL Remember, no one can get either Social Security or SSI or food stamps benefits without applying for them. If you think you qualify, contact a Social Security office, where you will be interviewed and will be given application forms to fill out. If you wait, you may pass your eligibility time.

Social Security Disability Insurance (SSDI) If you are over the age of sixty-five or under sixty-five and disabled and meet financial and other requirements, you may qualify. The Social Security Disability Insurance (SSDI) program has a different set of eligibility requirements for those diagnosed with the HIV virus. For those under sixty-five to qualify for SSDI, there is a waiting period of twentyfour months before the patient can be determined to be eligible for Medicare. Once the period of eligibility has been met, Medicare is available.

Veterans' Benefits Many persons who have served their country in the military may not know that they may be entitled to certain benefits even if they only served for a short period of time or if they were not wounded or injured in the line of duty. Veterans should apply to the U.S. Department of Veterans' Affairs (VA). Generally, veterans who were honorably discharged can qualify for certain benefits. Holders of undesirable or bad conduct discharges may qualify, depending on the determination of the VA based on the facts of each case. Dependents and survivors of veterans may also be eligible for certain VA benefits. One of the benefits includes medical care. VA medical facilities give highest priority to providing medical care to veterans with serviceconnected disabilities, to those who were discharged from active duty for a disability incurred or aggravated while in military service, to those who are in receipt of a VA pension, to those who are eligible for Medicaid, to those who are former POWs, and to certain others who were exposed to nuclear tests.

Selected Federal Benefits Programs • 2 4 9

Another benefit is nursing home and outpatient care. The VA provides skilled or intermediate nursing care and related medical care in VA or private nursing homes for convalescents or persons who are not acutely ill and not in need of hospital care. Outpatient care is provided for veterans disabled by age or disease who are not in need of acute hospitalization and who do not need the skilled nursing services provided in nursing homes. When a veteran incurs or aggravates a disability while in the military service, he or she may be eligible for compensation that is paid monthly. The amount of compensation paid is based on the severity of the veteran's condition. If a veteran is rated 30 percent or more disabled, additional amounts can be paid for dependents. Pensions are also available to veterans with wartime service and who are permanently and totally disabled. Other benefits include VA life insurance, death pension, and survivors' compensation. The VA will pay certain burial expenses if the veteran had been entitled to VA pension or compensation at the time of death, when death occurs in a VA facility or contract nursing home, if a veteran had wartime service, or if the veteran's death is caused by a serviceconnected disability. Amounts are different for each category. A veteran is also entitled to burial in a national cemetery. The spouse and minor children (in some cases adult, unmarried children) may also qualify for burial in a national cemetery. A headstone or marker is available for all veterans with a discharge other than dishonorable. Partial reimbursement for non-VA headstones or markers for placement in a cemetery other than a national cemetery is also possible. An American flag obtained from VA offices or most local post offices will be furnished to drape the casket of a veteran who was either a wartime veteran or one who served after January 31,1955, or a veteran who served at least one enlistment during peacetime or was discharged sooner because of a service-connected disability. With the exception of medical determinations, such as the appropriateness of a specific type of medical care, all claimants have the right to appeal to the Board of Veterans' Appeals (BVA). If you need more information, write, visit, or telephone the nearest VA regional office. The address and toll-free telephone numbers may be found in the white pages of the telephone directory under "U.S. Government." The State of Hawai'i also has an Office of Veterans' Affairs, which can help you get information. Veterans' benefits are more extensive than most people know. A veteran is a person who served in the active military, naval or air service, and who was discharged or released under conditions

2 5 0 • Appendix G other than dishonorable. Even those veterans who do not feel they have any "needs" have certain benefits, including certain burial benefits. Veterans and their dependents may also be eligible for pensions for service-connected compensation or needs based on service-connected compensation. If you or your spouse is a veteran, contact the Department of Veterans' Affairs.

Appendix H

Age Discrimination in Employment and the Americans with Disabilities Act Unfortunately, especially in difficult economic times, you may have a hard time finding a job. Occasionally, you will not get a job because of age discrimination. You may also be discriminated against due to disability.

Age Discrimination in Employment Under the federal Age Discrimination in Employment Act (ADEA), most employees and job applicants over the age of forty are protected from discrimination with respect to employment practices or decisions, including hiring and firing, promotion, layoffs, compensation, and other terms and conditions of employment. The Act is intended "to promote the employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." The provisions of the ADEA apply to employers, employment agencies, and labor organizations with respect to every form of employment practice that can affect an individual's status as an employee. It protects people who are at least forty years of age and applies to both the public and private sectors. "Employer" is defined as "a person engaged in an industry affecting commerce who has 20 or more employees for each working day in 251

252 • Appendix H

each of 20 or more calendar weeks in the current or preceding calendar year." An employer includes any agent of such person, a state or political subdivision of a state, and any agency or instrumentality of a state or a political subdivision of a state, any interstate agency, and the federal government. There are certain exceptions to the law. The "high policy maker" exception permits the compulsory retirement of "any employee who has attained 65 years of age and who for the two year period immediately before retirement is employed in a high policy making decision." The bona fide occupational qualification (BFOQ) is a defense where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. "Reasonable factors other than age" is another exception to the Act. While not expressly defined, "the reasonable factors other than age exception" are determined under a fact-specific, case-by-case analysis. There are certain defenses an employer may be allowed to rely on. a. The bona fide occupational qualifications (BFOQ) defense, b. Differentiations based on "reasonable factors other than age" (RFOTA) defense. c. The "bona fide seniority system" or "bona fide employee benefit plan" defense, which is not a subterfuge to evade the purposes of the Act; and d. The discharge or other discipline for good cause defense. The Hawai'i Civil Rights Commission (HCRC) and the federal Equal Employment Opportunity Commission (EEOC) have a "job share" program through which they have joint jurisdiction over complaints of employment discrimination and working agreements to most effectively handle complaints in Hawai'i. Again, you can call either the HCRC or EEOC for assistance.

The Americans with Disabilities Act The Americans with Disabilities Act (ADA) of 1990 made dramatic changes in the way that disabled people in the United States are treated. While age, of course, is not a disability, often older persons are afflicted with significant physical or mental impairments that substantially limit one or more major life activities.

Age Discrimination in Employment • 2 5 3

While the law is rather complicated you should know that it provides significant protection against discrimination and it mandates access to many things that people without disabilities take for granted. As with the Age Discrimination in Employment Act, the federal Equal Opportunity in Employment Commission plays a vital role and is ready to assist you. An impairment rises to the level of a disability if it substantially limits one or more of an individual's major life activities as defined in the law. Temporary, nonchronic impairments of short duration, with little or no long-term or permanent impact, are usually not disabilities. The ADA covers five critical areas: employment, transportation, public accommodations, state and local governments, and telecommunications. 1. Employment: Employers may not discriminate against an individual with a disability in hiring or promotion if the person is otherwise qualified for the job. Employers must provide "reasonable accommodation" to individuals with disabilities. 2. Transportation: New public transit buses, bus stations, and train stations must be accessible to individuals with disabilities, and transit authorities will have to provide comparable or other special transportation services to individuals who cannot use fixed bus routes. 3. Public Accommodation: Private entities such as restaurants, hotels, and retail stores may not discriminate against individuals with disabilities; physical barriers in existing facilities must be removed or alternate methods of supplying services must be provided; and all new construction and alterations of facilities must be accessible. 4. State and Local Government: State and local governments may not discriminate against qualified individuals with disabilities. All government facilities, services, and communications must be accessible. 5. Telecommunications: Companies offering telephone service to the public must offer telephone relay services to individuals who use telecommunication devices for the deaf (TDDs) or similar devices. The bottom line is, if you or somebody you know is being discriminated against in one or more of these areas because of a disability, help is available. There are several remedies under the new ADA law, but the best way to get help is to call the local EEOC office.

Appendix I

Housing and LandlordTenant Issues

Many persons on lower or fixed incomes have a hard time finding a decent place to live at a reasonable price. When they do find a place, they often find many problems and a "take it or leave it" attitude on the part of the housing authority or landlord.

Public Housing Programs of the Department of Housing and Urban Development (HUD) and the local Housing Authority offer rental assistance to qualified individuals and families. Monthly payments for an apartment or other housing units usually will be no more than 30 percent of an eligible tenant's monthly income. This amount may also include utilities. Persons living in Housing Authority units pay rent directly to the Housing Authority. If no such living unit is available, ask to be put on a waiting list.

Section 8 Housing This is a federal rental assistance program for low- and very-lowincome families and individuals who prefer to choose their own dwelling on the local market. Rent paid usually will be no higher than 30 percent of the gross family income. You may qualify for aid if you:

254

Housing and Landlord-Tenant Issues • 2 5 5

1. Belong to a family consisting of yourself and one or more family members. 2. Are handicapped, disabled, or are sixty-two years of age or older and you live with others who are handicapped, disabled, or elderly; or you live with someone who takes care of you. 3. Live alone and are sixty-two years of age or older. 4. Live alone and are handicapped or disabled, or are forced to move by government action or natural disaster. Subsidized housing also exists where the government pays the apartment complex owner to reduce the mortgage on the units. Tenants renting a subsidized apartment are also entitled to reductions in rent. Also, certain housing authority apartments may be exclusively for senior citizens and rental discounts are sometimes available.

Private Rental Agreements Rental agreements between landlords and tenants are legal in both oral and written form. An oral agreement normally creates a month-tomonth tenancy. A written agreement may be for any length of time, including a one-year lease or more. Nonwritten agreements are easier to make but are also harder to recall accurately. While a "handshake" contract is less intimidating, a written one will avoid any forgotten promises on either side later.

Termination of Tenancy Neither the landlord nor the tenant is required to give notice to terminate a tenancy at the expiration of a lease although it is recommended that twenty-eight days' notice be given to avoid any misunderstandings. On a month-to-month tenancy, landlords must give tenants a forty-five-day notice before the termination date. When the landlord gives notification of termination, the tenant may vacate at any time within the forty-five-day period and is responsible for pro-rata rent (a daily rate based on the monthly rent) for the days occupied. The tenant must give at least twenty-eight days' notice before termination and is responsible for the payment of rent through the twenty-eighth day. Before a landlord can terminate a month-to-month tenancy where the landlord contemplates voluntary demolition of the dwelling units or

256 • Appendix 1 conversion to condominiums or changing the use of the building to transient vacation rentals, the law requires that the landlord give a 120day notice to the tenants. Tenancies that are less than month-to-month require a ten-day notice by either party. A holdover tenant (someone who occupies the unit after the termination date without the landlord's consent) may be forced to pay up to double the normal monthly rent, calculated on a daily basis up to one month after the termination date. The landlord may sue to evict a tenant at any time during the first sixty days of holdover. However, if the landlord does not sue to evict the tenant within the sixty days and there is no new rental agreement, a month-to-month tenancy is created and the rent amount will be the same as the original contract. A landlord may not evict a tenant for the purpose of evading his or her obligations to provide the required period of notice for a rental increase. The landlord may not attempt to recover or take possession of the dwelling unit by intentionally diminishing or stopping essential services such as running water, hot water, electricity, and gas. If a tenant is absent from the dwelling for a continuing period of twenty days or more without written notice to the landlord, the tenant shall be deemed to have wrongfully quit the dwelling. If the tenant has already paid the rent for the period of absence, there is no "abandonment."

Right of Entiy A landlord may enter a dwelling without permission of a tenant in cases of emergency such as fire, weather damage, or abandonment. If the tenant refuses the landlord entry, the tenant may be liable for the resulting damage to the unit.

Security Deposits The security deposit is money deposited by the tenant with the landlord to cover: • tenant-caused damages to the dwelling unit • failure to pay rent or return keys at end of tenancy • general cleaning and restoration of the unit to its original condition, except for normal wear and tear • compensation for damages by a tenant who wrongfully quits the dwelling unit

Housing and Landlord-Tenant Issues • 2 5 7 The total amount of security deposit may not exceed one month's rent. It cannot be used as payment for the last month's rent unless specifically agreed upon in writing and the tenant gives forty-five days' notice of vacating the premises. If the landlord wants to keep any of the deposit, he or she must tell the tenant why in writing and include any cleaning and repair costs with receipts for those costs. The remaining portion must be returned to the tenant not later than fourteen days after rental termination. If the landlord does not give proper notice within that fourteen-day period, he or she must return the entire deposit. If the unit is sold during tenancy, the new owner must notify the tenant in writing within twenty days of the amount of the security deposit. Otherwise it is assumed that the tenant has paid an amount equal to one month's rent for the security deposit. Legal disputes over security deposits may be argued only in small claims court, without the aid of attorneys for either side.

Notice of Rent Increase The landlord is not required to give notice to increase rent at the expiration of a written lease although it is recommended that adequate notice be given to avoid misunderstandings. When rent is paid on a monthly basis with no long-term lease, the landlord must give fortyfive days' written notice to increase the rent. For those tenancies that are less than month-to-month, a fifteen-day written notice is required. A landlord may not give a tenant a notice of termination just to evade the required period of notice for a rental increase. There is no limit on how much the rent can be increased or on how often it can be increased within the above guidelines.

Eviction A landlord may demand payment of rent any time after it is due. He or she may send a written notice requesting payment within five business days of receipt of the notice. If the tenant does not pay by then, the rental agreement can be canceled and the landlord may sue to evict the tenant. The landlord may choose to sue for rent alone and not for eviction following proper written warning of such action. Notice may be given by regular or certified mail, by hand delivery, or by posted notice

2 5 8 • Appendix 1 at the dwelling if all other methods fail. The court may grant the landlord reimbursement of costs involved in evicting a tenant, to include court costs, attorney's fees, damages, and so on.

Fair Housing Laws There are several laws that serve to protect your housing rights in Hawai'i. The Civil Rights Act of 1866, the Civil Rights Act of 1968, and Chapter 515 of Hawai'i's Revised Statutes prohibit discriminatory practices in the sale, rental, lease, financing, or advertising by landlords, home sellers, financial institutions, condominium and cooperative housing associations, and their employees or agents due to a person's race, color, sex, religion, ancestry, handicap, children in the family, and marital status. Discrimination in the sale or rental of housing due to the presence of children in the family (including pregnancy or a pending adoption of a child) is prohibited except in "housing for older persons."

Appendix )

Telephone Reference Guide to Community Resources The area code is 808 unless otherwise noted.

AARP 526-4500 395-4950 ASK-2000 275-2000 Adult Protective Services (State—DHS) 832-5115 Adult Services Branch Hotline 538-5959 Adult Services Units (State—DHS) 832-5673 AIDS Hotline 922-1313 Alzheimer's Association 591-2771 American Cancer Society 595-7500 American Diabetes Association 924-7755 American Heart Association 538-7021 American Lung Association 537-5966 American Red Cross Nurse Aide Registry 734-2101 Better Business Bureau of Hawai'i Hotline 941-5222 Business Action Center (Employer liability) 586-2545 Cancer Information Service 1-800-422-6237 Caregiver Respite Program (Honolulu Gerontology Program) 538-3400 Caregiver to Caregiver Newsletter 395-4051 Catholic Services to the Elderly 537-6321 Consumer Resource Center (State) 587-3222 Prior Complaints 587-2677 Criminal History Records Check (State) 587-3106

259

2 6 0 • Appendix J Department of Hawaiian Homelands Homestead Services 586-3834 Department of Human Services, General Assistance (State) 586-5444 Department of Labor and Industrial Relations (State) 586-8842 Department of Veterans Affairs (Federal) 541-1000 Domestic Violence Legal Clinic (SAVD) 566-0661 or 1-800-839-5200 Elderly Affairs Division (City and County of Honolulu) 523-4545 Employment Services (State) 586-8700 Equal Employment Opportunity Commission 541-3120 Executive Office on Aging (State) 586-0100 Fair Housing Hotline 1-800-347-3739 Federal Information Center 1-800-688-9889 Hawai'i Assistive Technology Training and Services 645-3007 Hawai'i Centers for Independent Living 537-1941 Hawai'i Civil Rights Commission (Complaints) 586-8640 Hawai'i County on Aging 961-8603 Hawai'i Lawyers Care (Volunteer Attorneys) 528-7046 Hawai'i Meals on Wheels 988-6747 Hawai'i Mental Health Center 735-8870 Hawai'i Parkinson Syndrome Organization 737-2800 Hawai'i QUEST Division/Medicaid 586-5454 Hawai'i State Bar Association 537-1868 Hawai'i State Department of Labor and Industrial Relations 586-8842 Hawai'i State Department of Taxation 587-4242 Hawai'i State Government Information 586-2211 Hawai'i State Identification Office 587-3112 Hawai'i State Insurance Commission 586-2790 Honolulu County Medical Society 536-6988 Honolulu Gerontology Program (Crisis Intervention) 538-3400 Honolulu Nutrition Program 531-0555 Hospice Hawai'i 924-9255 Hospital and Medical Facility Branch (State—DOH) 586-4100 Immigration and Naturalization Service 1-800-870-3676 Internal Revenue Service (Federal) 1-800-829-3676

Telephone Reference Guide to Community Resources • 261 Kauai Office of Elderly Affairs 1-808-241-6400 Landlord-Tenant Hotline (State) 586-2634 Lawyers' Fund for Client Protection 599-2483 Legal Aid Society of Hawai'i 536-4302 Life Foundation 521-2437 Long-Term Care Ombudsman (State) 586-0100 Makana Foundation—Hawai'i Lions Eye Bank 536-7416 Maui County Office on Aging 243-7774 Medicaid Investigations Unit (Hawai'i—Attorney General) 586-1058 Med-QUEST Medicaid Recovery Unit 1-800-823-8600 Medicare Hotline 1-800-638-6833 Memorial Society of Hawai'i 946-6822 Mental Health Association 521-1846 National Academy of Elder Law Attorneys 1-520-881-4005 National Eldercare Locator 1-800-677-1116 Neighborhood Justice Center 521-6767 Office of Disciplinary Counsel (Regarding Lawyers) Office of Veterans' Affairs (State) 587-3000 Organ Donor Center of Hawai'i 599-7630

521-4591

Protection and Advocacy of Hawai'i 949-2922 Public Guardian Program (State) 522-8338 Public Health Nursing (State—DOH) 586-4620 Records—Birth, Death, Marriage (State—DOH) 586-4533 Respite Services/Senior Companion Program (State—DHS) 586-5192 SAGE Plus (Medicare/Medicaid Information) 586-0100 Samaritan Counseling Center 599-7630 Small Estates and Guardianship (State—Courts) 539-4399 St. Francis Hospice 595-7566 Social Security Administration (Federal) 1-800-772-1213 State Office of Ombudsman 587-0770 Tax Information (Federal)

1-800-829-1040

262

• Appendix J

Tax Information (State) 587-4242 Telecommunications Relay Service (Text) Tel-Med (HMSA) 948-6700

1-711 (Hearing)

1-511

University of Hawai'i Burns School of Medicine Body Donor 956-5467 University of Hawai'i Elder Law Program (UHELP) 956-6544

GLOSSARY

Actual Charge In a health care-related context, the amount a doctor or other supplier actually bills for a medical service. Acute Care In a health care-related context, skilled medical care for individuals, normally with short-term illnesses. Advance Medical Directive (AMD) In the broadest sense, applies to all directives, instructions, or even desires that a person may communicate in writing, orally, or in some other fashion concerning decisions about his or her body. Agent A person who is authorized to act on behalf of another. (Also see Attorney-in-Fact and Proxy) Approved Amount In a health care-related context, the amount Medicare determines to be reasonable for a service covered under Part B of Medicare. The approved amount is taken from a fee schedule. Assets Anything of value, usually real or personal property; resources. Assignment In a health care-related context, an arrangement whereby a physician or supplier agrees to accept the Medicareapproved amount as full payment for services and supplies under Part B of Medicare. Medicare pays 80 percent to the physician or supplier after the beneficiary meets the Part B deductible of $100. The beneficiary pays the other 20 percent. Attorney-at-Law

A person licensed to practice law; a lawyer.

Attorney-in-Fact A person who has the legal power to act on behalf of another; an agent appointed by a principal in a power of attorney. Augmented Estate The new concept under which the elective share is determined. (See Elective Share) Autonomy (From the Greek "self-law.") The principle that individuals should be allowed the greatest freedom to do as they please

263

264 • Glossaiy

and to be secure in their privacy, limited perhaps only by the principles of community values and best interests. Beneficiary A person who gets funds or other property under a will, trust, insurance policy, and the like. Benefit Period In a health care-related context, the period a patient is entitled to receive covered services under Medicare Part A (up to ninety days during each "spell of illness"). Best Interests The principle through which the state intervenes in a person's life when it believes that an individual's actions may hurt him or her. Bequest

Traditionally, a gift of personal property under a will.

Bond A legal paper that guarantees the faithful carrying out (performance) of specific duties. Capacity A person's alertness and attention, ability to process information, thought processes, and ability to control mood. (Also see Competency) Carrier In a health care-related context, the agent that processes Medicare Part B claims. Civil

Pertaining to contracts, torts, and other noncriminal actions.

Codicil A legal document that changes the provisions of a previously executed will; a supplement to a will. Co-Insurance In a health care-related context, that portion of the Medicare-approved amount that a beneficiary is responsible for paying. Common Law The system of law originating in England and later applied to the United States based on judicial precedent rather than legislative enactment. Community Values dividuals live.

The morals and ideals of the society in which in-

Competency Traditionally, a legal status conferred on individuals who are deemed able to make decisions. (Also see Capacity) Contract A promise (or agreement) between two or more parties that creates, modifies, or destroys a legal relation. Convey

To transfer property (or title) from one person to another.

Glossary • 2 6 5

Criminal

Pertaining to or connected to the law of crimes.

Curtesy Old term for husband's right to a portion of deceased wife's property. (See Elective Share) Custodial Care In a health care-related context, help with daily living tasks, not of a skilled medical nature. Decedent

One who is dead; a deceased person.

Deductible In a health care-related context, the amount that a beneficiary must first incur before Medicare begins payment for covered services. Deed An instrument (written document) that conveys an interest in land from one person (the grantor) to another (the grantee). Defendant The party responding to a plaintiff's suit or, in criminal proceedings, the person accused of a crime. Dementia A loss in at least two areas of complex behavior, such as language, memory, visual and spatial abilities, or judgment, which significantly interferes with a person's daily activities. Descendant Issue, offspring, or posterity; in an estate planning sense, it includes all of the descendants of all generations with the relationship of parent and child at each generation and includes adopted children. Devise

Traditionally, a gift of real property through a will.

Disinherit

To deprive the right of a person to inherit property.

DNR—Do Not Resuscitate An order to forego the otherwise automatic initiation of cardiopulmonary resuscitation (CPR); it does not alter other treatment decisions. Donee

A person who receives a gift.

Donor

A person who makes a gift.

Dower Old term of wife's right to a portion of deceased husband's property. (See Elective Share) Durable Power of Attorney A power of attorney that continues to be effective or becomes effective upon the incapacity or disability of the principal (person making the power of attorney). Elder Law The practice of law that focuses on the legal needs of the elderly and on the legal tools and techniques to meet the goals and objectives of the older client.

266 • Glossary

Elective Share The right of the living spouse or reciprocal beneficiary to take a share of the dead spouse's or reciprocal beneficiary's property (probate estate). Escheat The reversion of property to the state by reason of the lack of anyone to inherit it. Estate The interest a person has in real property and personal possessions; all that one owns. Estate Planning Devising a plan for the simple, orderly dispersal of a person's assets that will provide the best protection to beneficiaries and the minimum amount of cost, tax payments, and difficulties. Estate Taxes

The taxes on the estate of a deceased person.

Eviction Action by a landlord to compel a tenant to leave the premises. Euthanasia (From the Greek, meaning "a good death") A deliberate act or omission that causes or leads to the death of another. Executor (Personal Representative) A person or corporation appointed to settle or carry out the directions of the will of a dead person. Fair Hearing A hearing authorized by statute to ensure that a person's rights are protected, to include rights to public entitlements, deportation, and so on. Fee Simple

Complete ownership of an estate without restrictions.

Felony In criminal law, a term used to distinguish certain high crimes from minor offenses. Fiduciary A person acting on behalf of others and who owes a duty or allegiance to those others. Fiscal Intermediary In a health care-related context, the agent that processes Medicare Part A claims and also administers the "peer review organization." Fraud

Intentional deception that results in an injury to another.

Garnishment The legal process through which wages or other property is attached (or seized) to pay a debt. Gift

A voluntary transfer of property of any nature without any compensation (consideration) received in return.

Glossary • 2 6 7

Grantor

A person who gives to another or establishes a trust.

Guardian Ad Litem A person who is appointed by the court to represent the interests of another person in a proceeding. Guardian of the Person One who has the duty to care for a minor or a legally incompetent adult. Guardian of the Property One who has the duty to handle the property of a minor or a legally incompetent adult. Also called "conservator." Hanai

The Hawaiian system of adoption.

Hawai'i Quest In a health care-related context, Hawaii's medical assistance program. Heirs Broadly, those whom the law would allow to inherit an estate by a will, or if there is no will, by the laws of intestacy. Holographic Entirely written, dated, and signed by one's own hand. Usually used in reference to a will. Home Health Care In a health care-related context, care covered by Medicare Part A for homebound patients. Restrictions apply as to the type of person served and the nature of services provided. Hospice In a health care-related context, a program of care and services paid for by Medicare for terminally ill persons defined as having life expectancy of six months or less. Incapacitated Lacking the ability to understand and appreciate the nature and the consequences of making decisions concerning one's person or to communicate such decisions. Income Earnings and wages. (For tax and benefit programs purposes, can be "earned" or "unearned.") Incompetent Not legally qualified because of lack of qualifications or physical or intellectual fitness. Informed Consent Usually in a medical treatment context, consent that is given only after full information is provided on which to base a decision. Inherit To receive property and/or personal possessions according to laws of intestacy. Broadly, it also includes property passed through a will. Instrument A written document recording an act or agreement that provides the evidence of the act or agreement.

268 • Glossary

Inter Vivos "Between the living"; refers to legal documents drawn up while parties are living. Intestate will.

To die without a valid will; one who does not have a valid

Intestate Succession The disposition of property according to the laws of descent and distribution; usually refers to the laws stating to whom the property of a person who dies without a valid will must be distributed. Issue

Descendants of a common ancestor.

Joint Account A bank (or savings or other account) with two or more names held in joint tenancy. Joint Tenancy (With Right of Survivorship) A method of holding title to property by two or more persons who have equal right to share in the use and enjoyment of the property during their respective lives. Upon the death of a joint owner, his or her rights (or share) pass automatically to the surviving joint owner. Landlord

A person who leases real property to another.

Lease An agreement whereby one party gives another party the right of possession to a property. Lessor

One who grants a lease to another.

Letters Testamentary Letters issued to personal representatives who are appointed through either formal or informal probate. Lien A charge, hold, or claim on property; a security for a debt. In a health care-related context, Medicaid may place a lien against the home of an institutionalized Medicaid recipient if he or she cannot reasonably be expected to return home. Life Estate An interest in property (an estate) whose duration is limited to or measured by the life of the person holding it or the life of another person. Living Trust

A trust established during one's lifetime.

Living Will A common term for an advance medical declaration through which an individual directs (in the event he or she has a terminal condition or is in a condition in which he or she is no longer capable of making decisions concerning medical treatment) that life-sustaining procedures be applied, withheld, or withdrawn.

Glossary • 2 6 9

Long-Term Care In a health care-related context, nonacute care provided to an individual for an extended period, either in an institution, such as a nursing home, or at home. Look-Back Period In a health care-related context, the period during which Medicaid "looks back" to determine if assets were transferred for less than fair market value in order to obtain Medicaid benefits (thirty-six months when an individual transfers assets and sixty months when trust assets are transferred). MCCA

Medicare Catastrophic Coverage Act.

Medicaid Medical assistance program for low-income individuals who meet certain eligibility criteria. Medicare Federal medical insurance program for Social Security beneficiaries and spouses, regardless of their financial status. Medicare Part A (Hospital insurance) pays for medically necessary inpatient care in a hospital, skilled nursing facility, psychiatric hospital, hospice and home health care. Medicare Part B (Medical insurance) pays for necessary physician services and supplies not covered by Part A. Medigap Insurance health plans to supplement Medicare. Usually do not cover nursing home care. Misdemeanor

A minor crime under criminal laws.

Ownership The exclusive right to possess, enjoy, and dispose of something. Paralegal

An assistant to an attorney.

Parens Patriae (Latin for "parent of the country") The principle through which the state has the authority to intervene or to place limitations on the rights and autonomy of an individual who is considered to be incapable of caring for his or her own needs. Participating Physician and Supplier In a health care-related context, one who agrees to accept assignment on all Medicare claims. Party A person directly involved in the subject matter of a case; the person or entity entering into a contract, lease, deed, and the like. Penalty In a health care-related context, a period of disqualification before being eligible for Medicaid (normally up to a period of

270

• Glossary

thirty-six months, but sometimes up to sixty months for a transfer involving a trust). Per Capita "Through the head"; the method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to a deceased person; share and share alike. Personal Property In the broadest sense, everything that is subject to ownership that is not real property or attached to real property. Commonly used to describe property that consists of movable objects, like furniture, and jewelry and other valuables like money and stocks. Copyrights, patents, and trademarks may be considered personal property for some purposes and are often referred to as "intellectual property." Personal Representative

A term meaning executor.

Per Stirpes (Latin for "through or by the roots or stocks") The distribution of an estate by which a class or group of distributees takes a share that their deceased would have been entitled to according to their right of representing ancestor. Petition A formal written request (generally used in judicial proceedings) for a certain thing to be done. Petitioner Plaintiff

One who presents a petition to a court (or other body). One who initially brings a suit in court.

Police Power The power vested in the government to establish laws and ordinances to impose restrictions on private rights reasonably related to the promotion and maintenance of the health, safety, morals, and general welfare of the public. Power of Appointment Generally, a power or authority given to a person to dispose of property or an interest in property. Power of Attorney An instrument through which one person (principal) appoints another (attorney-in-fact) as agent and confers on him or her the authority to perform certain acts on behalf of the principal. Principal A person primarily responsible for an obligation or duty; a person who permits or directs another to act on his or her behalf. Probate The court-supervised process of settling the estate of a dead person and giving his or her property to heirs or beneficiaries; the act of proving the validity of a will.

Glossary • 2 7 1

Property Commonly used to denote everything that is the subject of ownership, tangible or intangible, real or personal. Proxy

A person who is given authority to act on behalf of another.

Real Estate

Usually, every legal interest and right one has in land.

Real Property on it.

Land and fixed improvements and things growing

Reciprocal Beneficiaries Under Hawai'i law, two adults who are not married and who are legally prohibited from marrying one another under Hawai'i's marriage laws and who are parties to a valid reciprocal beneficiary relationship registered with the Hawai'i Department of Health. Recorded Title An interest in land that has been written up in a legal document describing the land, giving the right to possess the land to the person or persons who own it. In Hawai'i this title is submitted to the state Bureau of Conveyances, which keeps it on file. Recovery In a health care-related context, the action Medicaid agencies will take against the estate of deceased Medicaid recipient to recover the cost of benefits if the recipient was age fifty-five or older when benefits were received and there is no surviving spouse or surviving child who is a minor, blind, or disabled. Remedy

The means used to enforce a right or redress an injury.

Reserve Days In a health care-related context, the sixty days Medicare provides to cover extraordinarily long stays in the hospital, in addition to the normal ninety days of coverage per spell of illness. Residence

A place of abode that is more than temporary.

Residuary Clause A clause in a will that gives beneficiaries everything remaining in a testator's estate which has not been given to others in the will. Resources In a health care-related context, cash or assets that can be converted into cash to pay medical bills. Exempt resources for Medicaid include a home, personal property, automobile with restrictions, burial plot, and certain other goods. Revocable Revoke

Subject to being canceled or changed.

To annul or make void; cancel, rescind, repeal, reverse.

2 7 2 • Glossary Right of Survivorship A right whereby a surviving owner of property is allowed to take the interest of another owner automatically upon that owner's death without the necessity of probate. It is an element of joint tenancy. Sale

A contract through which property is transferred from the seller to the buyer for a price paid or agreed to be paid by the buyer.

Settlor A person who sets up a trust by giving real or personal property "in trust" to another for the benefit of a beneficiary. Successor

One who succeeds another, usually involving property.

Spendthrift Trust A very restrictive trust created to provide funds for the maintenance of a beneficiary which is secure against his or her improvidencey or incapacity. Spousal Impoverishment In a health care-related context, the condition the MCCA sought to alleviate when community spouses were forced to use spousal assets and resources to pay for an institutionalized spouse's long-term care. To avoid impoverishment, the community spouse is allowed a certain level of family income and countable resources that are not counted against the institutionalized spouse. In 1997, the community spouse was allowed approximately $2,000 a month in income and $78,000 in resources. The institutionalized spouse can keep $30 a month for a personal needs allowance. Spouse

A wife or husband.

Springing Taking effect upon some future event or condition. (Often used in making a "durable power of attorney.") Summary Proceeding A short or concise, usually informal proceeding, as in the non-notice probate proceeding with the court registrar instead of the court. Sue

To commence or to continue legal proceedings for recovery of a right.

Suit

A comprehensive term that applies to any proceeding in a court of justice by which an individual pursues a remedy that the law affords.

Tenancy A right to possess an estate as in the expressions "joint tenancy," "tenancy by the entirety," and "tenancy in common."

Glossary • 2 7 3 Tenancy by the Entirety Used only by husbands and wives; a joint tenancy with the right of survivorship; a way of holding title (ownership). Tenancy in Common A method of holding title to property by two or more persons in equal or unequal shares with rights to possession to the property. A person's share may be sold or given away or distributed upon death. Testamentary Trust Testator

A trust established in a will.

One who makes and executes a will.

Title There are several types of titles, but basically it is the legal means by which an owner of land has the right to possess and use it. Tort

A wrong; a private or civil wrong or injury independent of contract, resulting from a breach of a legal duty.

Transfer In real estate, the term used to signify the conveyance by sale or gift or other legal means of title to property. Trust An agreement in which one person (trustee) holds property (trust estate) for the benefit of another (beneficiary). Trustee The person or institution who holds title to trust property, manages it, and distributes it to the beneficiaries. Undue Influence Improper or wrongful influence of another that creates grounds for nullifying a will or invalidating a gift or overturning some other action. Will

A written declaration of how persons desire their estate to be disposed after their death and which can also provide for certain things to be done after they die.

Index

abuse. See elder abuse accelerated benefit, 77 acute medical care decisions, definition, 112. See also life-sustaining medical treatment, removing adoption, Hawaiian system. See hanai Adult Protective Services, 70, 102, 161-165,259 advance health care decisions, 87, 90-91, 112, 116. See also lifesustaining medical treatment advance medical directives (AMD), 90-92, 168, 219, 263; portability, 91. See also advance health care decisions; DNR; physician orders for life-sustaining medical treatment age discrimination in employment, 5,27, 201-202, 251-252 Age Discrimination in Employment Act (ADEA), 251,253 allowance, exempt property, 40-41, 239; family, 40, 44, 238; homestead, 40-41,44,238-239 Alzheimer's disease, x, 15,18,64,71, 94,105,149-150 American Association of Retired Persons (AARP), 92 American Bar Association (ABA), 15; Model Code of Professional Responsibility, 15,21 American Medical Association (AMA), 221

Americans with Disabilities Act (ADA), 5,201-202,252-253 anatomical gifts, 37, 83, 88, 103-104. See also Kökua Packet; will annuities, 43, 78,187 aphasia, 17 arbitration, 217. See also Neighborhood Justice Center attorney, 49, 66, 75; competency screen, 24-25,29; credentials, 2021; duties, 9, 15-16; fees, 22-24, 25; hiring, 20, 22-23; problems with, 25-27; and retainer agreements, 23; use of associates, 24 attorney-client relationship, 15-16, 21-25 attorney-in-fact, agent, 100-102,263; alternate agents, 66, 71; definition, 66, 96, 263; sample document, 79-85. See also power of attorney; proxy Attorney General's Office, 150,164 augmented estate, 41,239-240,263 automatic payment, 65 autonomy, 12, 151, 263. See also parens patriae autopsies, xi, 105 beneficiary, 49, 264 BFOQ (bona fide occupational qualifications), 252. See also age discrimination in employment blood quantum, 228, 230-232

275

2 7 6 • Index Blue Ribbon Committee on Living and Dying with Dignity, 109 Board of Veterans' Appeals (BVA), 248. See also veterans' benefits Bureau of Public Health Statistics, 188 capacity, 10-14,16-20,48, 88; definition, 264; regarding euthanasia, 219 . See also power of attorney capital gains taxes, 53-54 caregiver, x; financial preparation for, 64-65 (see also Medicaid, caregiver coverage; Medicare, caregiver coverage); hiring, 121— 122, 223-227. See also elder abuse; neglect carrier, 129-130,264 client capacity screen, 16, 28 Clients' Security Fund, 21 clock-drawing test. See client capacity screen codicil, 35,37, 264 comfort care only document, 99. See also advance medical directives; palliative care competency, 10-14, 16-20; definition, 264. See also incompetency Consumer Resource Center, 5, 192, 215,259 convenience accounts. See joint account coroner. See medical examiner court intervention. See guardianship, court-appointed; probate CPR (cardiopulmonary resuscitation), 93-94, 99. See also advance health care decisions; advance medical directives; DNR; physician orders for life-sustaining medical treatment death, decisions following, 172-183; definition, 105-107. See also dying process; estate taxes; grieving; inheritance taxes delirium, 10,17

dementia, 10,18-19, 64,265 Department of Hawaiian Home Lands (DHHL), 230-231 Department of Housing and Urban Development (HUD), 254 Department of Human Services (DHS), 102, 122-123, 130, 133, 135-136, 138, 146, 150, 161-162, 260 disposition of the body. See funeral arrangements distribution of assets, 31-32, 4849, 51, 234-244. See also elective share; inheritance; probate; trust; will DNR (do not resuscitate), 88, 92-94, 98-99, 265. See also advance medical directives; life-sustaining medical treatment; living will; physician orders for lifesustaining medical treatment do-it-yourself forms. See stationery store forms Domestic Violence Clearinghouse and Legal Hotline, 22-23,161 dumping, 164-165 durable power of attorney. See power of attorney, durable dying process, 170-171 earned income tax credit (EITC), 199-200 elder abuse, x, 4, 9, 27,152,156-162; exploitation, 55, 69-70 150-151, 159 (see also estate planning, schemes; power of attorney, abuse). See also dumping; neglect elder law, 1,26-27, 265 elder law attorneys, 8-9, 26-27. See also attorney elderly housing. See housing; nursing home care elective share, 40-42, 239-240, 266. See also distribution of assets; inheritance emergency resuscitation decisions, 99. See also advance medical directives; CPR

Index • 2 7 7 Equal Employment Opportunity Commission (EEOC), 202, 252253, 260 estate, closing, 237-238, 241; opening, 236-237; planning, 31-61, 63, 87, 266; schemes, 54-56; taxes, 45-46, 49, 52, 54, 266 (see also gift tax; inheritance taxes). See also probate; trust; will estate planning experts. See estate planning, schemes; attorney euthanasia, 108,168, 218-222,266 Executive Office on Aging, 131,164, 260 executor. See personal representative extended values history. See values history family consent, 11, 91,110-112 federal benefits programs. See Medicaid; Medicare; Social Security; Supplemental Security Income; veterans' benefits fee-for-service plans, 122-123; Medicare coverage, 124,128,132 FICAtaxes, 224,227,245 fiduciary institution. See trust, company financial planning, 63-65. See also estate; trust; will fiscal intermediaries, 129-130 free legal services, 22, 55. See also University of Hawaii Elder Law Program funeral arrangements, 37, 42, 173174; advance, 177-178. See also anatomical gifts; Kokua Packet gift tax, 45,47,52,54 gifts, 52-53,201,266 grieving, 179-183 guardian, ad litem, 152-154,267 (see also Kokua Kandwai); alternative, 50 (see also living trust); court-appointed, 11, 13, 63, 153; of person, 8, 11, 89, 153, 267; of property, 8, 11, 267; public, 154-155

hanai, 5,34,228-229,231,267 Hawaii Board of Medical Examiners, 89 Hawaii Civil Rights Commission (HCRC), 202,252,260 Hawaii Lawyers Care, 23,260 Hawaii Quest, 83,118,134-135,260 Hawaii Revised Statutes, 156. See also mentally ill, committing Hawaii State Bar Association Attorney-Client Coordinating Committee, 26 Hawaii State Supreme Court, 21,26 Hawaii's Dependent Adult Protective Services Act, 157,161 Hawaiian Home Land Lease, 5, 229-231 Hawaiian Homes, Department of, 34 Hawaiian Homes Commission (HHC), 5,229-233 Hawaiian Homes Commission Act (HHCA), 229-233 Health, Department of, 33, 47, 150, 156,188 Health and Human Services, Department of. See Department of Human Services health care, paying for, 4, 122-147. See also Health-Care Financing Administration; health maintenance organization; Medicaid; medical bills; Medicare Health-Care Decisions by Legal Surrogate Act, 111-112 Health-Care Financing Administration (HCFA), 110, 122-123, 126, 163 health care power of attorney, 7-8, 15, 87, 92-95, 100-107; Kökua Packet, 213; sample, 79-84, 117119 Health Insurance Portability Act, 143,190 health maintenance organization (HMO), 122-124,131-134 heart-lung death. See death holographic will. See will, holographic

2 7 8 • Index hospice care, 171-172, 267. See also Medicare housing, vii-ix; landlord-tenant issues, 5, 202-203, 254-258, 260; public, ix, 9, 27, 254; Section 8, ix, 199 Immigration and Naturalization Service (INS), 225,260 incapacity, 12, 14, 19-20, 27, 65, 6768,100, 111, 267 incompetency, 12-14; definition, 119120,267; judicial findings, 12-15 individual retirement accounts (IRA), 32,36,64,186. See also life insurance informed consent, 14,88-89,267 inheritance, 267; rights and survivorship benefits, 33,42,47, 242243; taxes, 36 Internal Revenue Service (IRS), 72, 81-82, 185, 190, 195, 200, 225, 227,260 intestate, 39, 43, 268; succession laws, 39,40,234-235 joint accounts, 73-74,268 joint accounts with rights of survivorship (JWROS), 45. See also jointly held accounts joint tenancy. See jointly held property; tenancy by entireties jointly held property, 33, 36, 43-45, 74-75,268; rights, 47 Kökua Känäwai, 154. See also guardian, ad litem Kökua Packet, 4, 33, 61, 182-183, 207-214 Lawyers' Fund for Client Protection, 26,261 Legal Aid Society of Hawai'i, 23,261 legal assistant. See paralegal legal preparations. See living will; power of attorney; trust; will

legal surrogate, 112. See also family consent; guardianship; health care power of attorney legally incompetent. See incompetency life estate, 53, 268 life insurance, 32, 36, 43, 45, 54, 7677, 200. See also individual retirement accounts life-prolonging medical treatment. See life-sustaining medical treatment life-sustaining medical treatment, 87, 90-91, 97; removing, 91, 9495,101,107,109,112,168,219 living trust, 33, 36, 50-52, 268; kits, 51; irrevocable, 50, 242; revocable, 45, 49-50. See also living will; Qualified Terminable Interest Property trust; trust living will, 7-8, 14-15, 82, 87, 93100,102,168; absence of, 97; definition, 268; for psychotic disorders, 156; sample, 113-115. See also advance medical directives; living trust; physician orders for life-sustaining medical treatment living will law, 107; self-proving clause, 38-39, 60 locked-in state, 17-18 long-term care, 27,269 Long-Term Care Ombudsman, 150, 163-164,261 mediation. See arbitration Medicaid, 50, 89, 112, 118, 122-123, 134-147, 190; caregiver coverage, 172, 223-224; definition, 27, 269; eligibility, 50, 54, 129, 136-138, 143; long-term care coverage, 53, 139-140, 142-143, 146-147 Medicaid Investigations Unit, 164, 261 Medicare Catastrophic Coverage Act (MCCA), 4,140-142

Index • 2 7 9 medical bills, 189-191. See also health care, paying for medical consent. See family consent medical examiner, 105 medical records, access, 103 Medicare, 4, 89, 112, 118, 123-124, 131-134, 190; caregiver coverage, 125, 223-224; definition, 27, 269; eligibility, 125; hospice care, 127-128, 171-172; Part A, 124125, 127-131, 269; Part B, 125131,133,138,269 Medicare Discharge Planning Regulations, 164. See also dumping Medicare Hotline, 122,261 Medicare Supplemental Insurance Policy. See Medigap Medigap, 4,131-132, 269 memory loss, 14. See also capacity; competency mental health. See capacity; competency mentally competent. See competency mentally ill, 107, 155-156, 160, 221; committing, 155-156 mentally incapacitated. See incapacity; incompetency mercy killing. See euthanasia; selfdeliverance; suicide, physicianassisted multiple-party accounts, 44-45, 74, 243-244. See also jointly held property; tenancy in common

cacy Agency; University of Hawai'i Elder Law Program nursing home care, ix-x, 8, 13, 27, 89,94, 111, 128,152,163-165 Nursing Home Reform Law, 163

Na Kupuna, 5,34, 223,228 National Academy of Elder Law Attorneys (NAELA), 26-27,261 neglect, x, 4, 152, 158-160. See also dumping; elder abuse Neighborhood Justice Center, 217, 261 neurological event. See death nonprofit organizations. See Domestic Violence Clearinghouse and Legal Hotline; Immigration Law Project; Protection and Advo-

physician orders for life-sustaining medical treatment (POLMST), 92-94, 98. See also advance medical directives; life-sustaining medical treatment; living will power of attorney, 11, 13-14, 65-67; abuse, 69-70, 102; definition, 270; durable, 7, 67, 79-85, 265; general, 68-69; recognizing, 7172; revoking, 70-71; special, 6869; "springing," 68. See also health care power of attorney;

O'Connor, Sandra Day, 109,221-222 Office of Consumer Protection (OCP), 27,55,215-216 Office of Disciplinary Counsel (ODC), 9,26,261 Office of Hawaiian Affairs (OHA), 228 Office of Public Guardian, 155 organ donation. See anatomical gifts palliative care, 109, 221. See also comfort care only documents paralegal, 21-22,269 parens patriae, 151-152, 269. See also dumping Parkinson's disease, 17-18 Patient Self-Determination Act, 89-90 payments upon death account (POD), 45,242-243 peer review organization (PRO), 130 per capita, 31,244,270 per stirpes, 31,244,270 personal representative, 37, 42, 45, 66,193-194; definition, 266; sample documents, 58,61. See also attorney-in-fact physician-assisted suicide. See suicide

2 8 0 • Index power of attorney (continued) Social Security Administration, power of attorney principal, 66, 79,270 probate, 5, 34-36, 38-39, 66, 74, 234-244; avoiding, 34,44-45,50, 53; definition, 43, 196, 270; fees, 45,54 probate code, 31-32,41, 43,107,234, 239 probate estate, 35-36,39-40,57-58 property, 271; types, 74-75 Protection and Advocacy Agency, 23,261 protective services, 151. See also elder abuse; neglect proxy, 96-97, 100, 271. See also attorney-in-fact; power of attorney psychiatrists, 19-20,108. See also competency; incompetency; mentally ill psychologists, 19-20,153. See also competency; incompetency; mentally ill pull-the-plug document, 98,219. See also living will Qualified Medicare Beneficiary (QMB), 128-129,138 Qualified Terminable Interest Property trust (QTIP trust), 46 quimby program. See Qualified Medical Beneficiary (QMB) rational suicide. See self-deliverance; suicide reasonable factors other than age (RFOTA), 252. See also age discrimination in employment reciprocal beneficiaries, 75-76; definition, 33, 271; inheritance law, 42; intestate share, 3 9 ^ 1 , 235; MCCA coverage, 141; power of attorney, 73, 103; protection, 33, 53-54, 197-198; registering as, 46-49; trust, 51

reverse mortgage, 77,200-201 right of survivorship, 272. See also inheritance safe-deposit boxes, 64-65, 73, 82 self-deliverance, 168-169 self-proving clause, 39. See also witnesses settlor, 49,272 slimby program. See Specified Low Income Medicare Beneficiary slippery slope. See euthanasia small claims court, 27,216-217 Social Security, ix, 5, 65, 72,151,185; receiving, 27, 76-77, 199, 245247 (see also Social Security Administration, Appeals Council); taxes, 123 Social Security Administration, 7273, 75, 123, 130, 185, 227, 246, 261; Appeals Council, 246; letter of appointment, 194; power of attorney, 72-73 Social Security Disability Insurance (SSDI), 248 Social Services Department of Human Services. See Adult Protective Services sound mind, 37 Specified Low-income Medicare Beneficiary program (SLMB), 129, 138 spousal impoverishment, 139-140, 143 spousal liability, 191-192 State Health Insurance Program (SHIP), 135. See also Hawai'i Quest stationery store forms, 10,38,54 Students and Advocates for Victims of Domestic Violence (SAVD), 161, 260 suicide, 105, 107-108; physicianassisted, 98, 108-110, 219-222 (see also euthanasia). See also self-deliverance

Index • 281 Supplemental Security Income (SSI), 5,27,140,199,247-248 Supreme Court (U.S.), 108-110, 220-222 surrogate decision-making. See family consent; surrogate taxable estate, 36 tenancy by entireties, 33,44, 47, 273. See also jointly held property tenancy in common, 75, 273. See also jointly held property tenancy in severalty, 33,74 terminal condition, 94-95, 97, 99, 168 terminal illness. See terminal condition terminal sedation, 221. See also euthanasia; suicide, physicianassisted terminally ill person, 99,107,109 testate, 39,236. See also will trust, 7,10,14,32,34,45,49-52; company, 49; definition, 273. See also living trust; Qualified Terminable Interest Property trust trustee, 49,273 tube feeding. See life-sustaining medical treatment undue influence, 37 unified credit, 45-46. See also estate taxes; gift taxes; gifts Uniform Anatomical Gift Act, 104-105

Uniform Probate Code. See probate code University of Hawai'i Elder Law Program (UHELP), vii-vii, x, 1, 3,23,55,64,182-183,262 unmarried couples. See reciprocal beneficiaries Vacco v. Quill, 220-221 values history, 19,92,98,102 viatical settlements, 77 Veterans' Administration, 75, 151, 185 Veterans' Affairs, Department of, 76, 173,248-250,260 veterans' benefits, 5, 65, 199, 248250. See also Board of Veterans' Appeals Washington v. Glucksberg, 220-221 whole-brain death. See death will, 7,10,13-14, 32, 3^-37, 40; contest, 48, 51; definition, 273; extrinsic evidence, 38-39; holographic, 37-39,267; "pour over," 51; requirements, 37-38; sample, 57-61; substitute, 49. See also codicil; distribution of assets; living will; living will, self-proving clause; witnesses witnesses, living will, 96; will, 3739, 48. See also living will, selfproving clause Women's Resource Center, 161

About the Authors

James H. Pietsch received his baccalaureate degree from Georgetown University and his juris doctor from the Catholic University of America. He is currently an associate professor of law at the University of Hawai'i William S. Richardson School of Law and an adjunct clinical professor of medicine at the John A. Burns School of Medicine. Formerly, he was the Directing Attorney of the Honolulu Elder Law Unit of the Legal Aid Society of Hawai'i. In 1990, he received national recognition when he was presented the Paul Lichterman Award for outstanding achievement in the advancement of legal services for older persons. At the University of Hawai'i, Professor Pietsch teaches elder law and health law courses at the law school and at the medical school and supervises the direct delivery of legal services to older persons at the University of Hawai'i Elder Law Program (UHELP). He is the author of the Akamai Kupuna, A Legal Handbook for Older Persons, now in its eighth edition, he has written numerous articles on advanced medical directives, alternatives to guardianship, health care, and elder care, and he has collaborated with the Hawai'i Legal Auxiliary on various law-related handbooks and videos. In 1996, the governor appointed him to the Blue Ribbon Committee on Living and Dying with Dignity. His interest in health care and in law developed while he served on active duty in the U.S. Army, first in the Medical Service Corps and then in the Judge Advocate General's Corps. He confines to serve as a "JAG" colonel in the Army Reserve. Lenora H. Lee received her baccalaureate degree from Pomona College, M.A. degree from the University of Hawai'i, A.S. degree 283

284 • About the Authors

from Kapi'olani Community College Legal Assistant Program, and M.B.A. degree from Chaminade University. She has worked as a legal assistant or paralegal in the field of elder law at the Legal Aid Society of Hawai'i and at the University of Hawai'i Elder Law Program. In 1992, Mrs. Lee received the Outstanding Alumni Award from Kapi'olani Community College and, in 1994, the Liberty Bell award from the Hawai'i State Bar Association for her contribution to the legal profession. In addition to helping with the Akamai Kitpuna, she is the editor of A Child's Guide to Law, Being 18—Local Style, and the 1995 Kapalapala Po'okelo Best Children's Book of the Year, The Law of the Splintered Paddle—Kanawai Ma malahoe. In 1996, Mrs. Lee produced a videotape on the living will and Braille documents for advance directives. In 1997, she created and designed the Malama Caregivers Packet. Both projects won the Advocacy for the Disabled Award from the National Organization on Disability generously funded by the J. C. Penney Company.