Wednesday, October 18, 2017

Elder Abuse by Bureaucracy (and Some Strategies to Combat it) - Part 1

I have often told people that my job as an elder law lawyer is to maneuver within complex bureaucracies. The complex bureaucracy I deal with most often is the court system. However, I also work with with title companies, life insurance companies, Medicaid, Social Security, Veterans Administration, and stock transfer agents. Each of these worlds has its own rules and traditions.

To my mind, however, the deepest and most impenetrable bureaucracies surround healthcare. The rules and procedures that govern interactions with hospitals and large health care providers are some of the most frustrating of any I have ever encountered. I read complex legal documents for a living. Nevertheless, I am still today incapable of understanding a medical "explanation of benefits." I once got a bill from a dentist that was so cryptic that I had to write the office to ask how much I was supposed to pay. For my elderly clients, I have come to believe that the deep entrenched bureaucracies surrounding health care may have become so impenetrable as to constitute elder abuse.

With this in mind, I reviewed the Oregon elder abuse statutes. There wasn't much help. The statutes didn't clearly apply to abuse by red tape, but even if they did, health care facilities are exempt from Oregon's elder abuse statutes.

I am technologically skilled, educated, and generally considered a high functioning American. Nevertheless, I am regularly stymied when trying to obtain health care.

I will pick on Kaiser Permanente here because that is where I go. Last month I needed a refill for a prescription I have taken for years so I could take the medicine on vacation.  I began on Monday with a call the pharmacist. By Friday, many telephone calls later, I had the folks at Kaiser swearing they had delivered the renewal to the pharmacy. The pharmacy swore they had received no such thing. Using the flexible phone system in my office, I called both and patched them together on the same phone call so that they could speak to each other. I was promptly informed that Kaiser could not speak to the pharmacy if the conversation was on the patient's phone.

One of my clients had back pain. She cried hard enough over the phone about the pain that she was allowed an MRI to see what was wrong. She had the MRI and was eagerly awaiting a message from her doctor as to the results. Instead, she got a call from the office of a surgeon attempting to schedule a surgery she knew nothing about.

So what to do? Not much. I do, however, have a couple of suggestions. When a large bureaucracy is giving you problems, it is often useful to change the method of communication of the angle of approach.

If phone calls are not working, try email. Sometimes just a change in the communication channel produces results. It is odd, but it is a true. Write a letter. Some folks will be impressed that you took time to write in this technological age, but it may work. Have an agent, friend or lawyer call on your behalf. You will have to provide a release to allow them access to records, but an assertive friend may have success where you did not.

Try to talk to someone else. My studies in organizational theory suggest that organizations employ gatekeepers to protect the "us" who belong to the organization from the "them," who don't. If you bump into a particularly tough gatekeeper, try to find a different one.

If these don't work, you may need to take a more aggressive stance. Most commonly these approaches will be taking advantage of the fact that the people who work within large bureaucracies are also victims of bureaucratic complexity. There are another set of rules and expected behaviors that vex them, just as much as the ones they enforce vex you. In my next post, I will address some strategies that use this aspect of living and thriving in a highly bureaucratic society.


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Tuesday, March 7, 2017

Inheritance, rights and expectancy in Oregon - Did you have something to lose?


A tax lawyer once told me that an inheritance is the largest tax-free lump sum of money most people ever receive. Most wealthy Americans got their wealth because they inherited it. Parents most often leave their assets to their children, and children expect that they will inherit when their parents die. Children have an "expectation" that they will receive the wealth of the parents when the parents die. Googling the definition of “expectation” brings up the following:

the state of thinking or hoping that something, especially something pleasant, will happen or be the case.

In my office I see families in which the children are not only hoping that they will receive their parent's money, they are making life decisions based upon that hope. They are depending upon it. Sometimes they even jump the gun and begin taking and spending the money before the parents are gone.

In law, an "expectancy" is something you might get, but which you have no legal claim to. You expect your parents to leave you their money, but they don't have to. They can cut you out and leave it all to your siblings or cut everybody out and leave it to charity. They could leave you in the will but give or spend all the money before they die so you get nothing anyway. They might have named you as a beneficiary on a life insurance policy or a retirement account. You "expect" that they won't change the beneficiary, but you have no legal claim to the money until they die with your name still on the policy. If they do, you may feel like you have lost out, but in the eyes o the law you had nothing to lose.

Some expectancies are highly likely to materialize. If grandma named you in her will and she has now lost the cognitive ability to write a new will, that money is highly likely to be coming your way sooner or later. (The law assumes she can recover capacity and write a new will, so no matter how bad she is, it is still an expectancy.) Some vested legal claims are very unlikely to produce anything for you. If you buy a lottery ticket you have a legal right to the payout if your number is picked, but don't go taking out a loan on the hope it will pay off.

The difference between an expectancy and a vested right becomes important when something you hoped would happen does not. If I hoped to get some cash when grandma died, and it didn't happen, whether I can successfully sue someone may depend on whether my hope was based upon an expectancy or a right. If it is a right, I will have a document to hang my hat on. If it is an expectancy, the road may be tougher.

But it does get confusing.

If grandma named me in her will, but made a new will just before her death because my sister held a gun to her head, the second will is invalid. I have a vested right after grandma's death so long as I can prove that the second will was invalid. If grandma named me in her will, but just before her death she gave all her property to my sister because my sister held a gun to her head, I can sue my sister on behalf of my grandma's estate to recover the property wrongfully taken. In both cases I have a better claim to the money than the person who got it.

If, however, grandma changes her will or her beneficiary designations while capable and not subject to undue influence, I am out of luck. If she spends all her money on her new boyfriend or appoints an agent under a power of attorney who spends my inheritance on her care, I am similarly out of luck. If she or her agent takes all the money out of the account on which I am a beneficiary and puts it in an account for which I am not a beneficiary, I am out of luck. In these cases the change in the estate plan was not caused by wrongful behavior and the person who has the best right to the money is the person with their name on the last document signed by grandma. My expectancy is defeated.

I hate writing blog posts that end in my telling the reader he needs to consult an experienced probate attorney -- preferably the writer of this post -- but in this case it is true. If you feel wronged and are not sure whether your claim was an expectancy or a right, and whether there might be a benefit for you to take a trip the courthouse, talk to your local probate litigator.