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Helping Families Plan: Lessons Learned During a Pandemic

Written By: Michael LaMagna, LNHA, MPA, J.D.

As a licensed nursing home administrator and lawyer who has worked with many families in crisis, I thought that I had seen it all. In my combined careers, I have seen families facing the death of their family members, emergency admissions to health care facilities, fires, floods, nursing home strikes and a host of other challenging situations. The onset of COVID-19 “Covid” was and continues to be the most challenging situation of my career.

From March to the present, as Covid spread throughout the U.S., clients were calling about starting their long-delayed estate planning and inquired about what would occur if they were sick and in the hospital with Covid.  I have always advocated that clients have their basic estate planning, namely: Power of Attorney, Health Care Proxy/Living Will and a Last Will and Testament as young as 18 years of age. I counsel clients that anything can happen to them, so preparing for a time when you cannot make health care and financial decisions for yourself is critical.

In addition, there were situations that we could not predict. The first event was the closing of the courts for most essential functions, which was completely unanticipated. This was an issue for those clients seeking guardianship and probating a last will and testament. Around the same time, many of our clients who were in health care facilities were told that they could no longer have visitation, unless it was for a compassionate care reason.  Then in April, another bombshell hit, a change to Community Medicaid (Home Care Medicaid) in New York, creating a look back period for financial transfers on or after October 1, 2020.

With respect to estate planning, Governor Cuomo issued an Executive Order on March 7, 2020 permitting e-witnessing and e-notarizing of legal documents, which continues as of the writing of this article.  This enables us to assist our clients with getting their legal documents signed, witnessed and notarized, without putting them or the attorney at risk for covid transmission. We then put policies in place to ensure that the client was alone and not being influenced by anyone while signing their documents and a procedure to immediately transmit the document(s) to our office.

In addition, we received frequent calls about the need to access funds and probate the Will of a deceased family member.  With the courts basically closed or functioning in a limited capacity, we assisted our clients to pay for funerals, property taxes etc, without the benefit of expedited measures through the Surrogate court. As expected, we also received inquiries about Guardianship, due to the need for health care and financial decisions to be made for incapacitated individuals with either insufficient or estate planning.  Guardianship are heard in the Supreme Courts; however, the courts were either closed or operating on a very limited basis. We worked with the families, their care managers and financial advisors to construct safe plans, until the courts were reopened.

Some of the saddest inquiries were family members who were not permitted to visit with their family member who were living in a health care facility or hospitalized. The Department of Health issued a guidance on March 13, 2020 limiting visitation in health care facilities to compassionate care situations, which was loosely interpreted as end of life situations. We immediately contacted a technology company to assist the clients utilize current technology so that they could keep in contact with their family members. In a few circumstances we were able to assist family members with in-person visitation.  I am happy to report that on July 10, 2020 a new advisory was issued, permitting visitation in health care facilities, provided that they adhere to certain guidelines.

Probably the most impactful change during the Covid crisis is the change to Community Medicaid. On April 3, 2020 Governor Cuomo signed the approved 2020/21 New York State budget, which included a new 30-month financial look back period for Community Medicaid. commencing, October 1, 2020.  This is an enormous change from the current “no lookback” period.  The new look-back period means that clients may have to wait 30 months before obtaining the home health care that they require.

Although certainly challenging, the pandemic brought to light several best practices and learning opportunities. Now that we are facing a possible second wave, it is not too late to prepare, namely:

  • Plan Plan Plan Plan ahead!
  • Get your estate planning done. Having a Power of Attorney, Health Care Proxy, Living Will, Burial Designation, HIPAA authorization and a Last Will and Testament completed, accessible and available when needed is a must;
  • Get acquainted with technology, especially if you have a family member in a health care facility. You can purchase an iPad, iPhone or other device to keep in constant contact with your family member;
  • Have your team of trusted professionals assembled prior to a crisis. There are very competent lawyers, care managers and financial advisors who will work with you and each other to help you navigate through a crisis; and
  • Now is the time to look at your long-term planning and possibly make transfers before the new Community Medicaid guidelines. This type of planning should only be done with a competent lawyer to guide you.

Michael LaMagna, LNHA, MPA, J.D., is an attorney and client advocate at Riker Danzig, LLP, who concentrates in the areas of Advanced Asset Protection Planning, Health Care Regulations, Elder Law, Trusts and Estates, Probate and Estate Litigation, Guardianship, Health Care Regulatory Matters, and much more. He is admitted to practice in New York, Connecticut, Federal District Court and U.S. Supreme Court.

He is also licensed and has practiced as a Nursing Home Administrator in both NY and CT and has managed and consulted in numerous Health Care Facilities, including Hospitals, Nursing Homes, Assisted Living Centers, Independent Housing and Ambulatory Surgical Centers.

A sought-after educator and speaker, Michael has spoken at conventions, Board of Directors, Health Care Facilities and Trade Groups in the tristate area. He is a former Adjunct Professor at Long Island University, where he also received his Master’s Degree in Health Care Administration, where he taught both the Legal Aspects in Health Care Administration and Long-Term Care Administration classes for more than 10 years.  He received his J.D. from Pace University School of Law, a Post-Graduate Degree in Gerontology from Quinnipiac University, his M.P.A. in Health Care Administration from Long Island University, and his B.A. from Clark University.