Elder Care

Medicare

Hospice Care Defined

Medicare does provide certain coverage for services known as "hospice" care. Hospice care is specifically provided for terminally ill patients, and does not contemplate care for patients who are likely to recover from illnesses, regardless of severity. Hospice care generally involves the process of managing an illness and not curing an illness. The rules covering hospice care are detailed and also vary from state to state.

Generally, the following requirements must be met for coverage to exist. First, there must be a certification from a physician that the patient is expected to die within 6 months. Second, the patient must receive normal hospice services and not other kinds of services that are not normally supplied by a hospice. Third, the hospice facility must be certified and approved by Medicare.

Some examples of actual covered hospice services include: pain relief, nursing care, social services, drugs, physical, speech or vocational therapy, medical equipment, counseling, and physician's services related to the patient's terminal condition.

While it is contemplated that the patient has a terminal illness, there can be limits on the hospice care coverage provided by Medicare. The limits include coverage for 2 periods of 90 days, one period of 30 days and one additional unlimited period. There is a definite treatment and care schedule contemplated by the Code and the regulations, which is beyond the scope of this discussion. Suffice it to say that prior approval for your hospice care is recommended, and consultations with Medicare regarding the limits should take place to avoid any surprises. Usually, this is a difficult time for families and there are many issues other than legal battles which are much more important.

It should be mentioned that for any persons even considering hospice care for themselves or their relatives, this section is intended to demonstrate a number of steps which can be taken early to assist a person who may be terminally ill. The drafting of Wills, Trusts, Guardianships, Durable Powers of Attorney For Healthcare and a number of other legal steps can prevent a huge number of legal obstacles, delays and most of all, expenses later. It is wise for the families of any patient to carefully review all of these topics and consult the appropriate lawyers and other professionals, especially through your legal plan, for advance planning and advice.

Legal Illustration

Here are examples of how preventative planning can help: assume that your mother, age 67, is diagnosed with Alzheimer's disease. Generally, assuming she applied for Medicare, her medical diagnosis and treatment will be covered. But what about her personal life care decisions? And what about the management of her affairs?

If she had created a Durable Power of Attorney For Healthcare or a Living Will prior to her diagnosis [and it was properly drafted], she would likely have designated someone to make the decisions for her regarding her life-support systems and related matters. Naturally, your mother would not want every available life-sustaining measure taken, and could so specify in a Durable Power of Attorney For Healthcare or a Living Will. With an early diagnosis of Alzheimer's, artificial resuscitation, life-support systems, hydration and related issues are not usually an immediate priority. But the diagnosis of Alzheimer's effectively [although your lawyer may be able to argue otherwise] makes the creation of a Durable Power of Attorney For Healthcare or a Living Will, if not invalid, at least suspect, due to the decreased mental capacity of the patient. While the patient may live another ten to twenty years, they may not be able to specify their end of life wishes. Unless your mother had created a Durable Power of Attorney For Healthcare or a Living Will prior to her diagnosis, she may not be able to prepare one now that might sustain a court battle, should one result.

Then assume that after caring for your mother during her fight with this disease for the past 12 months, you and your husband decide to take a week vacation in the Caribbean for some rest and rejuvenation. While you are flying to the island, your mother suffers a stroke and is paralyzed. Unable to contact you, the doctors attach all of the available life-support systems and prescribe all of the life-sustaining measures. Upon your return, you are surprised to learn that: (1) your wishes are not binding on the hospital; and (2) if a valid Living Will or Durable Power of Attorney For Healthcare had been prepared before the Alzheimer's designation, the hospital would have easily accommodated your wishes.

To compound the problem, assume that your mother was not 67, but 60, still ran her own franchise coffee business, and had two franchises when she was diagnosed with Alzheimer's. Because her franchise agreement has a provision in it that gives the franchisor the right to institute certain measures in the event of your mother's incapacity, they decide to appoint their own manager. Further, they seek to obtain a court order for a determination that your mother is incompetent to manage her affairs. This threatened legal decision requires, under your state law, that a Conservator be appointed to run her affairs.

As the section on Conservatorships and guardianships illustrates, this is one of the worst uses of time and money in the legal system. And this expenditure of legal fees and time could likely have been avoided [although the franchise agreement would have to be examined] by the simple creation of a Living Will or Durable Power of Attorney For Healthcare.

Thus, the lesson is that when a person is older, regardless of their genetic make-up, it is possible to alleviate these problems with some simple preventative planning as suggested here.

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