Guide to Players: Social Security

This is the third post on the role of government agencies in guardianships and conservatorships. The first was about the Oregon court system. The second was about the U.S. Department of Veterans Affairs. This one is about Social Security.

Social Security provides retirement income for nearly all Americans over the age of sixty-five and provides disability income for millions of disabled people no matter what their age. Thus, Social Security provides at least some income to most elders or disabled persons who become subject to a guardianship or conservatorship.

When an elder or disabled person cannot manage his or her money, Social Security uses a “representative payee” system that allows a responsible relative or a professional to receive and spend Social Security income for the disabled person. A relative applies to Social Security to be appointed “rep payee” for a disabled person, and if the facts support the need for a fiduciary, Social Security will send the money to the representative. The paperwork is minimal and the annual accounting requirements are fairly simple.

While the U.S Department of Veterans Affairs does not play well with the state court system, the Social Security Administration does. If a state court appoints a conservator to handle of the money of a disabled person, Social Security will generally honor the state court decision and, upon application, make the conservator the representative payee of social security benefits. The U. S. Department of Veteran's, as I noted in my last post, is seldom so cooperative.

You need to keep these relationships in mind when you are determining what kind of fiduciary your disabled elder needs. We know that a guardian makes medical and placement decisions, while a conservator takes control of money. If the elder's money all comes from the federal sources--Social Security or veterans disability--there is probably no need for a conservatorship. The existing federal systems already provide the mechanisms to protect the money. If you establish a conservatorship to handle non-federal assets, Social Security will honor the conservatorship by naming the conservator as rep payee for Social Security income. This puts all the money in one set of hands. The veterans administration, on the other hand, will probably not cooperate in this way and may ignore the state court proceeding.

The rule is that you do not need a conservatorship if the only income of the disabled person is federal money—whether that be social security, veteran's disability, or both. If the elder has assets other than from federal money--let's say a big investment account and some real estate—then a conservatorship may be necessary to manage those assets. Once the conservatorship is established the conservator can take charge of the Social Security money, but will not get control of veterans benefits (without making his or her case directly to the U.S. Department of Veteran's Affairs).

Conservatorships are expensive and messy. Before you wander down that path be sure what assets you want to conserve and whether the protection offered by a conservatorship is worth the cost of the legal proceedings. When making the calculation, don't include federal money—Social Security and veteran's benefits—because that income is conserved through the federal system. Once you have removed the federal component take a look at the costs of the state court proceeding. If the cost of the conservatorship exceeds ten percent of the the amount of money to be protected, look for another way.

More on other ways later.

Guide to Players: The U.S. Department of Veterans Affairs

I just wrote about the role of the Oregon courts in guardianships and conservatorships. I now want to write about a government agency that is completely and utterly indifferent to anything that happens in state court. It is the U.S. Department of Veterans Affairs.

The U.S. Department of Veterans affairs—the USDVA—is a  federal agency that provides medical care and a lot of other benefits for veterans. Some veterans receive disability payments due to service-related disabilities and are incapable of handling the money on their own. For these veterans the USDVA has a payee system under which it nominates a family member or a professional fiduciary to hold and administer the disability money for the veteran.

Some times the professional fiduciary selected by the USDVA will not need all of the veteran's disability money for his needs and the funds will start to accumulate in the account controlled by the fiduciary. The USDVA might then ask the fiduciary go to state court to establish a conservatorship. In other cases, family members go to state court asking for a guardianship or a conservatorship because the veteran has other funds that need to be protected, and they want the USDVA disability benefits controlled by the same conservator. In both of these situations the Oregon State court system and the USDVA collide. The results are seldom pretty.

In an earlier post I mentioned the state court judge who considers her court the last line of protection for elders and the disabled. Well the USDVA has a different view about how much protection state courts offer. To the USDVA the state court system is one in which over-paid professional fiduciaries and lawyers empty the coffers of the disabled without providing much of anything in return. Those closely aligned with the state courts don't think much of the USDVA system either. Fiduciaries used to working in the state court system think the USDVA fiduciaries are under-trained, inexperienced, and overworked. Professional fiduciaries who are well respected in the state court system may be despised by the USDVA, and fiduciaries who are believed  to walk on water by the USDVA may be looked upon as common criminals in the state court system. The key for you is to recognize the dispute without getting involved in it.

The important thing to remember is that the USDVA is allowed under federal law to ignore anything and everything that state courts do. You cannot subpoena USDVA records or personnel. State court orders can be completely ignored by the USDVA and routinely are. Therefore, if the bulk of the money going to a disabled person is USDVA money, you and your lawyer cannot go to state court to get control of it.  

Let me say this again in capitals. YOU CANNOT USE THE STATE COURTS TO GET CONTROL OF USDVA MONEY.

I repeatedly see family members and their lawyers going into state court saying that they want honest old Uncle Henry to be conservator for disabled cousin Darrell so that Henry can control and administer the money coming every month from the USDVA. It ain't going to happen. The USDVA will decide who is in charge of that money, including accumulations of it in bank accounts, and there is nothing your local judge can do about it.

Not only will the USDVA not allow state courts to interfere with the administration of veteran's disability payments, it seldom allows its employees to appear in state court proceedings at all. Thus, if your proof that grandpa has Alzheimer's depends upon testimony from his medical providers at the USDVA hospital, you may lose your case. The only way I have gotten USDVA providers into court has been by begging and pleading with the USDVA lawyers, and when they finally agreed, the witnesses were accompanied by a USDVA lawyer to make sure he or she didn't say anything that wasn't in the agreement I made with them. That was a couple years ago, and rumor has it that since then the USDVA has become even more reticent about allowing its employees into state court.

So here are the guidelines

1. Don't get involved in the friction that exists between the state court system and the USDVA
2. If there is a conflict between a state court and the USDVA, the feds win—every time.
3. Don't expect to ever win a case in state court using evidence provided by the USDVA.
4. Money that comes from the USDVA stays in its control forever and there is nothing you can do about it.

After I explain all this to clients they ask, “I hate the person appointed by the USDVA to handle my father's disability money. What can I do?” The answer is political. Complain a lot and write your congressman. As an Oregon elder law lawyer who hangs around state courts, there is nothing I can do for you.  

Guide to Players: The court, the judge and the staff

I have written a post of about the kinds of lawyers who practice elder law. I have written a post about the number of lawyers who might become involved in an Oregon guardianship or conservatorship. I have discussed the visitors, professional fiduciaries and other professionals who may show up in a case. It is time to talk about the government agencies.

Government has its hands all over these kinds of proceedings and each arm of the government has a different personality. The important ones are (1) the state courts, (2) the Social Security Administration, (3) the United States Department of Veteran's Affairs, and (4) the Oregon Department of Veterans Affairs. Each of these arms of government has different goals, different procedures, and different attitudes toward disabled elders. We will begin with the court system.

Judges

In any Oregon county, guardianships and conservatorships are handled in the probate department of the circuit court. In the larger counties there is one judge assigned to head the probate department. That judge may do all probate matters, or administer the probate department with the help of other judges.

The judges preside over hearings in contested cases. They make rulings on motions and sign the orders that establish a guardianship or conservatorship. It is the judge’s job to make sure the law is followed, and that every person gets a full and fair chance to be heard. There is one local Oregon judge who is fond of stating that she is the last line of protection for the aged and the disabled.

Oregon judges do a good job. Because probate judges somewhat limit their caseload to probate cases, they know the law well and, as far as I can tell, administer justice as well as fallible humans can do. Nobody is perfect and no judge I know claims to be an exception. My experience is, however, that Oregon judges are intelligent, hard working, always prepared, respectful of the litigants, and fair.

Court Staff

If one were to look through probate files at an Oregon courthouse, you might see hundreds of approvals, orders, and other documents which appear to have been examined and approved by a judge, but in fact were not. The courts see the same kind of documents so many times, that the probate staff is often charged with examining the documents, determining their compliance with law, and either approving them directly or recommending that a judge approve them. A probate staff member may either have a stamp with the judge's signature and be authorized to use it, or may bring the matter to the judge with a recommendation—at which point the judge signs off on the matter without really looking at it.

Judges work hard to treat lawyers and litigants with equal respect and courtesy. The probate staff is more willing to play favorites. Lawyers who hang around the probate court a lot and get friendly with the staff have an easier time getting documents signed than those who don't. Lawyers who have dealt honestly and straightforwardly with the court for years will have their requests granted with barely a glance, while those who have been disingenuous with the court, or rude to the court staff, will have a hard time of it.

(If you are considering hiring an Oregon elder law lawyer, ask the potential lawyer the name of the probate coordinator in the county where you are going to file. If he or she doesn't know, move on to somebody who does.)

I had an assistant once who asked me, “is probate law the same in every state?” I answered that probate law has been pretty much the same since Roman days, but we don't get paid the big bucks because we know probate law. We get the big buck because we know the probate coordinators in all the surrounding counties. People are local. So is justice.

There is no trick to dealing with judges and the probate staff. Be honest and forthcoming with the judge. Be courteous and helpful to the court staff. If you can do both those things there should be nothing you need worry about in dealing with a court.

Guide to the Players: Professional Guardians and Conservators

There is a Bill Cosby skit in which Bill observes that parents faced with bickering children to not want justice--they want quiet. Judges often have a similar attitude when it comes to families battling over who should be appointed guardian or conservator for an aging family member. The judge doesn’t want to hear about all the dirty laundry and figures that if the family cannot agree, everybody will be better off with a neutral party. That neutral party is almost always a professional. Elder law lawyers refer to guardians and conservators as “fiduciaries.” Some fiduciaries are family members. The ones I am talking about today are professional fiduciaries. They do it for a living and they charge for their services.

Where do Professional Fiduciaries Come From?

Professional fiduciaries are people who have set up small businesses serving as guardians, conservators and trustees in cases where there is no family member available to play that role. They tend to be trained in medicine or the social services, but there are no requirements for being a professional fiduciary other than the ability to get a bond and the ability to get appointed. Several prominent fiduciaries in Oregon used to work as nurses. Others hold masters degrees in social work. Some simply learned the profession on the job by working for other professional fiduciaries.

Although there is no license required to become a professional fiduciary, most of the professionals in Oregon belong to the Guardian/Conservator Association of Oregon. The web site contains a list of its members. If you go to the list you will see that I am a member. I am not a guardian or a conservator, but I deal enough with the professionals that I want to keep up with what they are doing.

In a guardianship or conservatorship the professional fiduciary needs his or her own lawyer. Professional fiduciaries build relationships law firms and use the same ones over and over. The fiduciaries give work to the law firms, and the firms give work back to the fiduciaries. If you are an elder law lawyer it is good for business to have a fiduciary or two who like to hire you. If you are a fiduciary, it is good for business to have a lawyer or two who will call you when a case need the skills of a professional. One hand washes the other.

One interesting aspect of the connection between law firms and fiduciaries is that a professional fiduciary can file a petition for the appointment of a guardian or conservator even if no one in the family wants it to happen. For example, a fiduciary with connections in the medical community might get called when a medical provider is suspicious about the welfare of an elder. The fiduciary goes to her favorite law firm and causes a guardianship petition to be filed. A few days later the family is inundated with legal papers from a person completely outside the family who is asking to be appointed guardian for the disabled elder and expecting to be paid, along with the attorney, from the funds of the elder. There have been some complaints about this process, but the courts have tended to allow it on the grounds that it does result in protection for elders.

The professionals, like law firms, have their own personalities. Some are sweet social worker types who try to make everybody happy. Others are tough, stepping in to make the difficult decisions when the people in the family cannot. Almost all fiduciaries do business as sole proprietors or small partnerships. Some run their businesses out of their homes.

Fiduciaries, in addition to having connections with law firms, also develop connections with arms of government. Some fiduciaries will work only within the state court system. Others work primarily with the U.S. Department of Veterans Affairs and its system for providing benefits for disabled vets. Tension between the state and federal government in this area, translates into tension among the fiduciaries attached to each.  An elder law lawyer thrust into one of these disputes among agencies and their favored fiduciaries spends as much time on the politics of the case as she does on the law.

What do the Professionals Do and What Does it Cost

Professional guardians make medical and placement decisions for disabled elders. Professional conservators collect, secure, and manage the money for elders who cannot do that themselves. They charge between sixty-five and an hundred dollars an hour. They often employ bookkeepers and caseworkers who charge less than that. They do whatever is required by the court order appointing them and report yearly to the court. Once appointed, they are extremely difficult to get rid of.

Conclusion

In the right circumstances, having a professional fiduciary take care of your love one can be a blessing. You go back to being a child or a grandchild or a friend and the professional makes the hard decisions. In the wrong case it can be a nightmare. For a period of time, I made a good living litigating against professional fiduciaries who had clear and firm ideas about what should happen to an elder and were not about to let meddling loved ones or even the law get in their way. If you must invite a professional fiduciary in your life, try to get Anne Sullivan and not Nurse Ratched. In the beginning it can be hard to tell the difference. Demand references and talk to people in the business to make sure the person will work for your family.

Oregon Guide to the Players: Lawyers continued

In my last post I talked about elder law lawyers and where they come from. I will now assume that you read that post and have hired an elder law lawyer to help you get a guardian appointed for your elderly demented parent who is no longer safe living alone. Your lawyer learned all about your parent and filed a petition in court asking that you be appointed to make decisions for your parent. You intend to move your parent to a long term care center. Before you know it there are lawyers everywhere. Let’s take a look at where they all came from.

Your Lawyer

You know where your lawyer came from. You learned about the various kinds of elder law lawyers. You avoided any of the behaviors described in my post about how not to hire an Oregon elder law lawyer. Then you found a lawyer you liked and hired him or her.

A Lawyer for the Disabled Elder

After your lawyer filed the papers necessary to begin the guardianship, he had the papers personally served upon your disabled parent and mailed to the other members of the family. The papers served upon your parent gave directions on how to object to the proceeding. One of the papers is a blue form which stands out from the others. It is the form your parent uses to object to having a guardian or a conservator appointed.

Sometimes the elder signs the blue objection form. Sometimes a concerned relative signs the form and claims the elder did it. Elders served with a petition for the appointment of a guardian have been known to emerge from deep coma’s long enough to sign the blue objection form. Lets assume that your elderly parent received the form, decided you were just out to get her money, and vows that she will never leave her home.

Your disabled parent might go out and hire an elder law attorney using the same method you used to find your attorney. Your parent’s lawyer would then defend the elder’s right to make decisions for herself. If your parent objects by filling out the blue form, but does not hire a lawyer, the court may appoint one for her. The court uses a list. The lawyers on the list have agreed to take court appointments with the understanding that sometimes the lawyer will get paid and sometimes the lawyer won’t. I am on the list. Being on the list is a risk, but we do it because we think that the elder in these cases should have a lawyer on her side.

Now we have two lawyers. Your lawyer filed the case. Your parent objected and the court has appointed a lawyer from the list to represent your parent.

But we aren’t done yet.

The Lawyer for the Professional Fiduciary  

Soon after your parent gets a lawyer, your lawyer calls you into his office and gives you fourteen reasons why you should not be the guardian for your parent. The most convincing reason is that being a guardian for your objecting parent may well destroy the parent-child relationship. Your lawyer suggest that you ask a professional guardian to step in. There is a small industry consisting of social workers, nurses, and psychologists who make a living being guardians and conservators for the elderly.  Your lawyer recommends one and you agree.

Soon you find that the professional guardian suggested by your lawyer has her own lawyer. The professional’s lawyer comes from one of the local elder law firms or is a well-established sole practitioner who does nothing but elder law. Elder law lawyers develop ongoing relationships with these professionals. Elder law lawyers regularly recommend certain professional guardians and conservators to their clients, and professional guardians reciprocate by hiring those elder law lawyers to represent them in other cases. If your lawyer said that Fred Feelgood would probably be a good professional for your parent, it is probable that Fred has hired your lawyer to represent him in other cases.

Now you have a lawyer, your parent has a lawyer, and the professional fiduciary has a lawyer. How many lawyers does it take to keep your elderly parent safe? The answer is three. If your parent has money, all of them may expect to be paid from your parent’s cash. And  there could be more.

Lawyers for the other relatives and government agencies.

When your lawyer filed the papers to have a guardian appointed, he gave copies of the papers to several of the the elder’s relatives, the state of Oregon, and sometimes the U.S. Department of Veteran’s affairs. Any concerned relative or disgruntled government agency is entitled to file papers in the case and have their issues heard. Thus, that angry brother of yours who thinks your parent should never be allowed to eat salt gets his day in court. If your elder is receiving government benefits, the agency in charge  may have something to say. The courtroom is quickly filling with lawyers.

Conclusion

The old Chinese blessing wishes you a life without lawyers. Before you go off to file the papers to start a guardianship or conservatorship, be aware that you are putting the wheels of justice in motion. We lawyers are like owls--we see motion and swoop in to feed. What started as a simple visit to one Oregon elder law lawyer can end with a courtroom full of them. This is not to suggest that you shouldn’t do it. If an elder is in danger, you may have no choice. But be warned, you may end up in a courtroom full of lawyers, every one of them wanting to be paid from the funds of the disabled elder. The point is that filing for a guardianship or conservatorship attracts expensive professionals. Don’t do it unless the result you want to achieve is worth the risk that you are taking.

Oregon Guide to the Players: Elder Law Lawyers

It has come to that. Your elderly parent is giving all her money away to a televangelist, or leaving the stove burners on for days at a time, or wandering in the street in her nightgown. You have tried to talk to her. She refuses to change her behaviors and adamantly refuses to enter a care center. You have talked to your brothers and sisters and to her bank. Everyone agrees that someone has to be appointed by the courts to protect her from herself. You need a guardianship or a conservatorship.

You are entering a world in which several professions and several arms of government uneasily interact. You may think it is simply a matter of hiring a lawyer and letting the lawyer take care of things. Guardianships and conservatorships are seldom that easy. This series of posts is intended to identify the players in the drama and give you a glimpse of how they interact with each other. The first post in the series is about lawyers.

Elder law lawyers come from a variety of places. There are elder law firms, sole practitioners, lawyers from full-service firms who practice elder law, lawyers who do elder law and other things, and lawyers who will do anything that comes in the door. It is worthwhile to take a look at each type.

Elder Law Firms

In Oregon, Multnomah County is the only county that has firms of lawyers that do only elder law. Because the demand for elder law is not great, elder law firms are small compared to firms in other areas of law. Multnomah County has three of them: Fitzwater & Meyer, Nay & Friedenberg, and Davis, Pagnano. Fitzater & Meyer is the largest of them, and as of this writing, the firm web page lists ten lawyers.

The elder law firms offer the full gamut of elder law and estate planning services. They employ paralegals and generally use technology to provide quality service at a fairly reasonable price.  The lawyers at these firms tend to charge an hourly rate higher than the sole practitioners, but when the cases are over their bills are not necessarily higher. Some clients like the security the firms offer, while other prefer the intimacy of working with a sole practitioner.

The Sole Practitioners

I am one of these. I practice out of a small office in Fairview, Oregon with the help of a legal assistant. There are a quite a few sole practitioners doing elder law. Many of them limit their practice to a certain aspect of elder law. One local attorney takes only contested guardianships and conservatorships. Another refuses to do contested cases, handing only cases that do not require hearings. Sole practitioners tend to charge a lower hourly rate than firm lawyers, but they sometimes lack the technological tools and support staff that streamline legal services. I like to think that my bills come out lower than those from the firms, but there are other sole practitioners in which that is clearly not the case.

Lawyers from Full Service Firms That Do Elder Law

Some large full-service firms, the kind that represent businesses and professional sports figures, have a lawyer or two on hand to handle elder law issues. These lawyers tend to concentrate on probate and the conflicts that arise when rich clients die and pass on their money. Those cases are close enough to elder law to enable the full-service firm lawyer to tackle an elder law case now and then. The big firm lawyers are always intelligent and well trained. Sometimes, however, they lack intimate knowledge of the court staff and procedures. This means they spend more time on simple things and charge a very high hourly rate for doing so.

Lawyers who do elder law and other things.

Some communities simply cannot support a lawyer who wants to do elder law full time. Thus, if a lawyer wants to make a living, he or she does other kinds of law as well. Some excellent elder law lawyers in small towns also do divorce law. Some times a lawyer is transitioning from one kind of practice to another and during the transition period does both. The lawyers I have seen who fall into these categories tend to do a fine job at a reasonable price.

Lawyers who do anything that comes in the door.

Some lawyers offer to do whatever you need done. They will get you out of jail, get you divorced, get a personal injury settlement after your slip-and-fall at the grocery store, and establish a conservatorship for your demented parent. The smaller your community, the more likely it is that you will find lawyers like this. If this is the only kind of lawyer available to you, then you have no choice. If you live in a more urban area, find someone who practices elder law on a regular basis.

Conclusion

People generally overestimate the impact their choice of lawyer will have on a case. The law is the law. The facts of your case are what they are and you are not supposed to make up new facts in order to win. The lawyers job is to know what the law is and present the facts to the court in the most positive light. It ain’t rocket science.

If you need and elder law lawyer, first find a lawyer who actually practices elder law. Your business lawyer or that great guy who helped you beat the drunk driving charge may not be the right person to help you with a guardianship or conservatorship. Next, pick a lawyer you like. There are a lot of us out there. You should not have to put up with someone you do not get along with. And finally, choose someone you can afford. When you and your lawyer are both comfortable with how the fees are going to be paid, the relationship has a lot better chance of going well. It is very often true that as the relationship goes, so goes the case.

Next Installment Fiduciaries (Then government agencies)

Stop Writing Deeds

Deeds. They are simple documents that transfer property from one person to another. Anybody can get a deed form, fill it out, and take it down to the county recorder to be recorded. With less paperwork than it takes to get a library card you can transfer the title to a million dollars worth of real estate.

I have a lot of examples of screwed up deeds in my office--so many that I have threatened to open a museum of horrible deeds. To lawyers, they are funny. To the families who have to deal with the consequences, they are disasters.

More often than not these deeds are the result of do-it-yourself estate planning. Somebody decides that instead of going to see a lawyer and paying all those fees, the family should just “put the kids name on” the house. Children use the phrase “put the name on” because they don’t want to come out and say the truth: that the children are inducing the elder to give away everything the elder owns while he or she is still alive. Why wait until mom or dad is dead when you can get the stuff right away.

It is not, however, always greedy or ill-informed children who come up with the deed idea. Sometimes it is the elder who has decided he or she needs to avoid probate. This kind of elder has often paid a lawyer for a perfectly good estate plan, and then at the last minute destroys it all with a flurry of amateur deed writing. The children come to me holding mother’s will. They are upset because one child now owns everything. I learn that in an effort to avoid probate, mother put that child on the deed to the house. The house was mother’s only important asset, so there is nothing left to be distributed to the other children according to the directions contained in the will.

Think of a will as a coffee canister. On the outside of the canister the owner writes directions about who will get the coffee inside when the owner dies. The owner directs that the coffee will be measured out and divided equally among the owners children. A lot can happen to the coffee before the owner’s death. The owner could drink all the coffee so that the canister is empty when he or she dies. The owner could also empty the coffee canister and give all the coffee to her next door neighbor or one of her children. The canister only works to distribute the coffee to her children if there is some coffee in it when she dies. A remarkable number of families get together at the time of mother’s last illness and decide to empty the canister. When it doesn’t work out because one child ended up with all the coffee and now declares that mom wanted it that way, the other children bring in the empty canister and, pointing to the directions on the outside, complain that they didn’t get their fair share of coffee. Some times I can help. Many times I cannot.

The most common way to empty the coffee canister is with deeds. Sometimes the elder signing the deed knows that she is giving away everything she owns. Sometimes she thinks that she will continue to own it until she dies and then it will go to the other name on the deed. Sometimes the deed is so incomprehensible and the testimony so conflicting that it is impossible to ascertain what the elder meant.

I want the deed writing to stop. There are ways to make gifts to children while the elder is still alive. There are ways to avoid probate if probate needs to be avoided. Deeds may be part of the plan, but the plan itself needs to be reviewed by a lawyer. Many families have found that the simple deed form from the stationary store that they bought for two dollars, turns out to be--after all my fees are paid to fix the damage--the most expensive money saver in the history of the family.

When it comes time to talk about mother’s last illness and what will happen, somebody in the family is going to hint at getting a deed form and putting another name on the house. When you hear that, stop them. Run away. Protest. Don’t do it, This is the time to pay for a lawyer.