Comprehensive Planning. Lifelong Solutions.

What is the difference between a Living Will and a “Do Not Resuscitate” Order?

By Emily Martin, Esq.

When we meet with clients, one issue that comes up often is end-of-life care. While it’s certainly an unpleasant thought, it is important to face the possibility that you may become unable to make decisions about your healthcare at some point. Whether you suffer from dementia and gradually become incapacitated or you experience a stroke or terrible accident and the change is more sudden, if you cannot make decisions yourself, someone is going to have to take on that responsibility for you. Perhaps most importantly, whoever is making these decisions for you will need guidance on what your wishes would be in certain situations. For example, if you were in a terminal state with no hope of recovery, would you want to be kept alive artificially through assisted respiration, feeding tubes, and other mechanisms? If so, how long would you want to be kept alive?

Many people confuse the terms “Living Will” and a “Do Not Resuscitate” Order (commonly called a DNR). A Living Will is simply a statement of your wishes. In this document, you can state whether you would like to have life-prolonging procedures such as artificial nutrition and hydration continued if you were in a vegetative state with no hope of recovery. You can also state whether you prefer to be buried or cremated and give direction as to whether you would like your body or organs to be donated for either scientific or medical purposes. This document works with your healthcare power of attorney – your agent under that document must follow your wishes as laid out in the advance medical directive.

On the other hand, a DNR is a written physician’s order to withhold resuscitation from a patient in the event of cardiac or respiratory arrest. Resuscitation measures that can be withheld under a DNR Order include cardiac compression, intubation, artificial ventilation, defibrillation, and other related procedures (Virginia Code § 54.1-2982).  Instructions to implement a DNR order are typically given by whoever is legally permitted to make medical decisions on behalf of a patient in the hospital – whether that person is the next of kin as defined by Virginia law or is someone appointed under a Healthcare Power of Attorney.

While Living Wills typically remain in effect until the person who implemented it passes away or executes a new one, DNR orders typically are revoked if a patient makes a full recovery and leaves the hospital. That means that a new DNR would need to be implemented if there were another hospitalization.

Another important document that is related to both Living Wills and DNR Orders is the Healthcare Power of Attorney. This document allows you to appoint one or more people who will work with your doctors to make healthcare decisions on your behalf should you become incapacitated. An agent under a healthcare power of attorney has a variety of powers and responsibilities, including the ability to decide which course of treatment is best for you, whether you should enter a long-term care facility, and which doctors should be consulted as to your care. If you have a Healthcare Power of Attorney, your agent will be the one who decides whether to instruct the doctor to issue a DNR Order or not.

If you don’t have a Healthcare Power of Attorney, Virginia law provides for a list of priority “surrogate decision-makers.” First on the list is your guardian (if one has been appointed), then your spouse, then any adult children you may have (Virginia Code § 54.12986).  Often, this list does not align with whom many people would want making medical decisions for them if they became incapacitated.

Although no one enjoys facing the possibility that they may become incapacitated, it is important that you make your wishes known. Doing so cannot only provide reassurance to your family, because they know what your wishes are; but, it can also guarantee you have a voice in deciding who should make medical decisions for you in the event that you cannot make them on your own.

Ask Kit Kat: Westminster Kennel Club Dog Show

Hook Law Center: Kit Kat, what can you tell us about the Westminster Kennel Club Dog Show which was held last week in New York City?

Kit Kat: Well, it’s a wonderful competition that has been held 142 times! This year’s opened on Feb.11, 2019. The first Westminster Kennel Club Dog Show opened in 1877 at Gilmore’s Garden, which later became known as Madison Square Garden. The show has grown over the years from 1,200 dogs to nearly 3,000 dogs from all 50 states. Originally, a 3-to4-day competition, it is now completed in 2 days. The name “Westminster” was chosen by its founding group as a tribute to their favorite hotel and bar—the Westminster Hotel near Union Square. Though the hotel is long gone, it still lives on in the name of the dog show. The dog show in its early days focused on hunting dogs. Other than the Kentucky Derby, it is the second-oldest continuously run sporting event in the United States. This year marks the 70th year that the event has been televised.

Not many know that the Westminster Dog Show has a junior division for dog handlers who are between the ages of 9-18. It is known as the Junior Showmanship competition. The kids themselves are evaluated, perhaps more so, than their dogs. They have to work as a team. One girl, Rylie May of Hillsboro, Kansas, is now 18, but in her first competition at a 4 H show at age 9, she competed with a 6-month old puppy, who dragged her everywhere. She’s learned a lot since then. May entered her Australian shepherd this year. They didn’t get to the finals, but she was really proud of her dog, Toby. She said, “It’s taught me a lot about responsibility. It’s a lot of hard work. It’s putting the dog’s needs before your own.” (Claudio E. Cabrera, “How the Westminster Dog Show Got Its Name,” The New York Times, Feb.12, 2019/Amy Wang,”At this Westminster Dog Show competition, it’s the humans who are judged, ”The Washington Post, Feb.11, 2019)

Posted on Monday, February 18th, 2019. Filed under Senior Law News.

Protecting a Spouse Remaining in the Community

By Letha Sgritta McDowell, CELA

When one spouse is facing a long-term care need, the initial focus is on the health needs of the spouse who will need long-term care (the “institutionalized spouse” or “IS“); yet, once the care needs have been determined and placement or home care is secured, then the focus necessarily turns towards the needs of the spouse who does not need care (the “community spouse” or “CS”).  Without planning or education, it is possible for all funds, including income and savings, to be expended on the institutionalized spouse, leaving the community spouse with little or nothing.

For individuals needing long-term care, there are a number of ways to pay for care, all of which should be considered when facing such a large expense.  Should one spouse need nursing care for a long period of time, then it is wise to consider Medicaid as an option to assist in paying for care.  Many have misconceptions about the Medicaid program, and there are numerous myths about Medicaid and nursing care. The realty for many is that Medicaid payment of nursing care expenses is the only way that both an institutionalized spouse and a community spouse can be cared for both physically and financially.  Most importantly for married couples, federal Medicaid policy takes the needs of a spouse into account and offers financial protections specifically for the community spouse.

There are a number of requirements for Medicaid eligibility but of most concern is the “income” and “asset” requirements. Practically speaking, income is considered to be amounts paid regularly to the applicant, such as social security, retirement pensions, or annuity payments.  While the definition of income can be much more complex than described here, generally, so long as the applicant’s monthly income is less than the private pay rate of the nursing facility, then the applicant meets the income requirement for Medicaid.  If the individual takes advantage of Medicaid’s home and community-based waiver services, then the income in Virginia is $2,313 and North Carolina is $1,012.  Note that, for purposes of eligibility, only the income of the spouse applying for benefits is relevant.  Therefore, if the spouse remaining in the community has income which exceeds either the private pay rate of the nursing facility or the above waiver limits, then the applicant still meets the income requirements.  Unfortunately, often it is the institutionalized spouse who has the greater income.  While the community spouse’s income is not considered for eligibility, it is considered when looking at what the institutionalized spouse may need to contribute towards his or her cost of care.  Federal Medicaid policy requires that each state create a Minimum Monthly Maintenance Needs Allowance (“MMMNA”) and, if the community spouse’s income falls below the MMMNA amount, then the institutionalized spouse will be directed to contribute an amount from his or her income to the community spouse in order to provide that the community spouse has income of at least the MMMNA. In addition, there are circumstances in which an even greater contribution from the institutionalized spouse may be allowed if the community spouse can demonstrate a need.  Currently the MMMNA for Virginia is $2,057.50 and North Carolina is $2,058.

Even more concerning than monthly income, is often what happens to a couple’s assets (“assets”) if one spouse has a long-term nursing care need.  As with income, federal Medicaid policy includes protections for a couple’s assets, ensuring that the spouse remaining in the community may continue to have assets to use for his/her needs. Unlike with the income requirement for eligibility, Medicaid policy does consider the assets of both spouses for eligibility purposes. However, there are two key factors which protect the community spouse.  The first is that certain assets are excluded when reviewing eligibility requirements; essentially, some assets just don’t count. A prime example and of great importance is the couple’s primary residence.  Examples of other assets which don’t count are funerals or burial arrangements, the value of one vehicle, term life insurance, certain annuity contracts, certain loan arrangements, and more.    In addition to allowing certain assets to not count, the community spouse is allowed to keep a percentage of the couple’s combined countable assets up to a maximum of $126,420 (the same in both Virginia and North Carolina).  There was some concern toward the end of last year that this CSRA allowance would no longer apply to home and community-based services; however, Congress has agreed to continue to make allowances for the CSRA even in a home setting.  This amount is known as the Community Spouse Resource Allowance (“CSRA”). Therefore, Medicaid policy allows a community spouse to continue to maintain countable assets up to the CSRA in addition to an unlimited amount of non-countable assets. 

Thus, a community spouse can be financially protected, even if  his/her spouse needs nursing care. Unfortunately, many couples fear financial ruin of chronic illness and have considered drastic measures such as gifting away their property or getting a divorce; or, they mistakenly think that this type of planning needs to be done five years before nursing home placement .  However, this advance planning is not necessary, and no such extreme measures are required to protect a spouse remaining in the community.

Ask Kit Kat: Orca Calf in Northwest

Hook Law Center: Kit Kat, what can you tell us about the newest orca calf born in the Pacific Northwest?

Kit Kat: Well, this is very good news indeed!  A new orca calf was spotted in mid-January 2019 in Admiralty Inlet, at the north end of Puget Sound. Observers are not sure whether it’s male or female, but it belongs to the L pod, and will be known as L124 for now. At the time of sighting, it appeared to be about 3 weeks old. No calves born to this pod have survived to adulthood since 2015, so everyone is hoping for the best. The L pod has shrunk to 35 in number.  A decline in the Chinook salmon population, its main food source, appears to be the reason for the decline, as well as water pollution. Other groupings of orcas who do not live so close to industrialized areas are faring better.

L pod, along with J and K pods, comprise a group known as the Southern Residents. In its heyday, the Southern Residents numbered about 100. Today, there are approximately 75. J pod became famous last year, when one of its calves died shortly after birth and her distraught mother, J35, pushed her corpse around for 17 days using her nose, before letting her go. J35 may soon lose her mother, J17, who appears to be hungry and weak, according to Melisa Pinnow, a biologist with the Center for Whale Research, which is based in Washington State. Orcas must swim to feed and survive. When they can no longer do that, they die. The Southern Residents are organized around the females. Grandmothers live with their daughters and help young mothers raise their calves. Older females even go through menopause like humans do.

Washington State established a task force last year to look at what could be done to help the orcas. Among the recommendations were 1) to remove certain dams to let rivers take their natural course, 2) to remove net pens of farmed salmon, and 3) to cut back on salmon  consumption, generally. Time will tell whether these recommendations will have a positive impact. (Jacey Fortin, “Orca Cal Offers Hope for a Fading Group in the Pacific Northwest,” The New York Times, Jan. 17, 2019)

Posted on Thursday, February 7th, 2019. Filed under Senior Law News.
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Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.