So frustrated with elder care attorneys. Any guidance?
Need some guidance from those who have done 24/7/365 care contracts. I apologize but this is LONG!
Mom is 84 yrs old with moderate dementia. She has lived with me for the past 5 years. Over the past year her safety & self-care abilities have declined to the point that she is no longer safe alone while I work. She refuses an AL or any providers to come into my home.
I consulted an attorney who *claimed* he was versed in elder law. After the first consult, it was clear that he didn't have a clue because I knew more about Medicare/Medicaid law from my online research than he did! Elder lawyer #2 turned out to be a nightmare. I kid you not, his "solution" was, "You pay me $12,000 & I can get my contact at C*****t Nursing Home to arrange admission for her. You do whatever it takes to get her there, even if it means lying, and they'll SNOW HER INTO SUBMISSION with medications." Yeah, pretty unbelievable, huh?
I recently consulted lawyer #3 in early June. She was late for our consultation, saying she was delayed in another meeting, but she took lots of notes as we talked & seemed like she was very knowledgeable & had her ducks in a row. She suggested we file for VA benefits but couldn't find the doctor's testament papers in her files that would need to be completed. On her way out the door, she said she'd get to work right away on the care contract & they'd send me the paperwork but she couldn't stay because she had a court case to rush off to. Still, I left feeling like we were on our way now & had found a good elder attorney.
A month & a half went by without any word or paperwork. I called & inquired. The lawyer wasn't in so the secretary had me leave a voicemail. I left a detailed message saying I was having difficulties getting some of the documentation needed for the VA benefits so could we please just go ahead with Mom paying for the care from private funds. (I had already been off work for 3 months without income & needed to expedite things) It took them a week & a half to get back to me....and it was not the lawyer, but the secretary. Despite the detailed message I had left, the secretary had everything backwards. I went through it with her TWO more times....I'm hemorrhaging money without an income, I'm having trouble getting my Dad's DD-214 (long, convoluted 63 yr old government screw-up story) & Mom & I just wanted to skip the VA application & go straight to having a care contract drawn up that would have Mom paying me the same flat-rate fee each month for 24/7/365 companionship & AL-type care. She claimed to understand. I never did get a chance to take with the lawyer, herself.
I get a packet from the lawyer in today's mail. Finally! Now we're getting somewhere. NOT!! We wanted the contract to reflect 24/7/365 lodging & food, food prep, companionship, housekeeping/yard care, laundry service, supervision & ADL assistance as needed, medication assistance, transportation, entertainment/outings, shopping, financial management & medical management for a flat monthly salary of $2K....which is less than my state average AL costs. My mother would be paying me out of her private funds that include her SSI, pension from work & income from personal investments.
Instead, the contract I got never mentions 24/7/365 lodging in my home. In fact, she wrote that I "must visit at least once per day". She also didn't mention the yard care, 24/7/365 companionship/supervision or financial management. She wrote up the food as not being provided from my salary but that Mom would provide money separately for HER food to be bought separate & kept separate from mine. Secondly, instead of the flat monthly rate that we WANT, she wrote it out that Mom would pay me $15/hr. I have to give Mom an invoice each week of time spent providing assistance & that my total number of hours, and therefore my pay, will vary each week dependent on the amount of assistance needed during any particular week.
First, I'm ticked that the contract isn't ANYTHING like what we wanted. I suspect the lawyer is angry because we backed out on the VA thing & she could have charged a LOT more and, subsequently, just pulled a generic contract from her files, ie. less money *for*, less effort *from* her. Secondly, in order for this to work, I HAVE to make enough to feasibly stay home with her. The flat rate accomplishes that; the hourly rate very well may not since she still dresses, feeds & toilets herself at this point. Also, it's possible I'll be putting in MORE than 40 hrs/wk as she worsens & she just can't afford that at $15/hr!! Not to mention that it's going to be a NIGHTMARE for me trying to keep her food/my food separate, what she's paying for, what I pay for, and budget for my own expenses when my income's gonna vary so much!
Has anyone encountered these problems? Do I call to demand they "fix" the contract to what we want? Do I look for yet ANOTHER lawyer? I can't keep wasting her $ on useless lawyers, I can't afford to stay home for free & she's not capable alone!
25 Answers
Popular Questions
Related Questions
- How are dower rights treated in NJ?
- I have POA. Can I change my husband's Will?
- My MIL lives in Michigan with her daughter who is disabled. What is the best way to protect their condo if my MIL went into a care facility
- My sibling took my wealthy Mom's home and refused access to his other siblings. Is there anything we can do?
You are on the right path to completing your caregiver contract, so don't give up. Family members who provide elder care at home can save their loved one from a nursing home admission. But without a written agreement, the family members may be setting themselves up for problems. Here's why:
Reason 1: The Caregiver Contract recognizes and rewards the time and effort that you give to care, and helps to prevent arguments and misunderstandings among other family members who can't or won't help out.
Reason 2: Without a written agreement, the elder (and others people involved in care such as physicians and health care providers) aren't sure about who is responsible to maintain the needed level of care. The Caregiver Contract includes a written organization of care and other services, that can be adjusted to your changing needs.
Reason 3: Without a written agreement, the elder who pays a family member for care can be disqualified from Medicaid coverage if they need nursing home care in the future. The Caregiver Contract documents the compensation and services in a format that Medicaid can understand and accept.
Your path to the offices of those different attorneys your described is unfortunate. The last thing you need as a caregiver is a run around from people who are supposed to be helping you.
Use your online research skills to qualify the potential attorney. Attorneys who are committed to this field of law can study and take a 1 day examination administered by the National Elder Law Foundation. Attorneys who pass the test, and demonstrate commitment to elder care clients, are listed as Certified Elder Law Attorneys on the NELF website, and on the National Academy of Elder Law Attorneys website. The attorney can't pass the test without knowing all the things you talked about, and much more.
Other attorneys are listed online as members of the National Academy of Elder Law Attorneys, and you can find them listed online. Check to see how active they are in the organization, and as students or presenters of the continuing legal education the organization provides.
If the attorney is actively involved in providing the legal services you described, he or she should be able to list a flat fee and provide you with a Service Plan that puts in writing the services you want him or her to provide.
I'm not blaming you at all; it's difficult to find a good attorney, and it's not just a matter of looking online - you need to do some research.
Frankly, I wouldn't continue with any of them, including the one who didn't respond and delayed preparation of the contract I worked for an attorney like that once, and it was for a very short duration. I didn't want to be involved in either poor or negligent practices.
I would probably report #2 to the state bar.
Any attorney who botches up an assignment as badly as the last one did with the caregiving contract is not someone you want to represent you. Period.
The attorney might be able to bill you in some way that seems to include a VA application, but it's illegal for someone to be charged for preparation. You can get this done for free by contacting one of the service organizations. The American Legion handled ours and did it quickly. They may also know how to expedite getting the DD 214, especially if your father's was burned in the fire.
There is absolutely no excuse for failing to contact you for a month and a half.
What I suspect is that this is an attorney who's either young and just starting out and still finding her way, or is an associate who's trying to bill her way into a partnership and is taking on more than she can handle. Or both, and/or she could be the dumping ground for partners assigning out their cases to the younger lawyers.
It's also not responsive of the secretary not to call and update you; good secretaries do that without being told.
I wouldn't continue with her, but I would do a thorough search by making the contacts I suggested earlier, contacting attorneys after reviewing their websites to ensure that they are in fact in the estate planning and/or elder law practice area, and inquiring as to their billable arrangements.
Some attorneys offer a free consultation; some charge on a retainer basis. Find that out before meeting with them.
I'm also partial to law firms with either estate planning or elder law practice groups. There can be as many as half a dozen attorneys, sometimes with a subspecialty such as special needs trusts, gifting, charitable trusts, etc.
If you want an example, PM me and I'll give you a link to a firm that we use so you can get an idea how to search for reputable and competent attorneys.
As for Dad's DD-214, no, it wasnt destroyed in the fire. It's worse & sounds like something out of a soap opera. He was mistakenly listed as Killed In Action in Korea in 1951. His parents got "the visit" & everything notifying them of his death. Two years later my father arrived home to no waiting family. He was a bit puzzled but, since his Dad owned a small grocery, he figured they couldn't find someone to mind the store while they turned out to welcome him home. He arrived on the steps of his parents' house to be greeted with, "Oh my God! What are you doing here? They told us you were dead." Long story short, my Dad stood in line every month for 2 years & got paid by the Army, my Dad mustered home with all the other surviving members of his unit & he has a DD-214 that the government says IS legit....it just can't be his because, according to our records, THAT guy is dead. Wait, it gets better! The guy that signed his DD-214 was illiterate & unable to sign his name properly, so the official signature on Dad's DD-214 is nothing but a scribble of meaningless peaks that the Army refuses to acknowledge. His parents swore up & down that they were never paid the $10K death benefit but Dad never saw any of it, his brother was serving in the Navy at the time & his sisters were too young to have clandestinely spirited away with it but the Army claims it was paid. No one can explain exactly *where* that money went. Dad spent hours & hours & years & years of his time petitioning Senators & Congressmen, the DoD & the Army in a fruitless effort to correct the record. Every attempt was met with the same response...."Well, your name might very well be John Q Public but you can't be THAT John Q Public because he's dead. BUT...don't leave the country & don't write a book about your experiences." Why not, since you say that I'm not THAT John Q Public? "You're not, but..." Dad eventually stopped trying & came to the conclusion that he was "erased" due to his MOS during the war & there would never be anything he could do about it. Interestingly, he was going to do some civilian work in Saudi Arabia in the 1970's but could never get his passport clearance so his company sent him elsewhere here in the States. He died for the "second time" in 1989 without ever seeing things corrected.
As for the pay rate & additional costs to Mom....good question. I have yet to get ANY answers as to how the tax part of everything would break down in costs for her & take-home pay for me. I'm seriously at the point where I want to just say "screw it" & let Mom pay me "under the table" & pray age/frailness will catch up with her before her money runs out & Medicaid says it was all a "gift" or somehow *force* her into a home & tell Medicare fine, if this is the way I'm gonna have to play it, we'll blow through her money 3 times as fast by paying a nursing home & then Medicaid can pay for 10 years of care inside of 5, or whatever. I'm trying to make Mom happy & actually save Medicaid some money & *I'm* the one getting harrassed, stressed, left hanging out to dry & penalized!
Be sure to change it to reflect exactly what you do for mom. It is my understanding that you are required to keep a daily log of what you do. Of course, you are required to claim this money as income, file a tax return and pay income tax/social security on the money. I'm positive about the paying taxes part -- not positive about the daily log.
Have it notarized...money she's paid you before the contract date will be considered a gift by Medicaid if mom eventually needs it. This gift money will have to be either paid back OR mom will be exempt from assistance until it is recouped
Since you're having so much trouble finding a specialist in this area of law, you might want to consider a DIY.
i can't imagine why you've been thru a number of attys supposedly specializing in this area of law. Not my experience AT all. My attorney recommended one to me, he did an initial free consult over the phone that introduced me to options that COULD be done, then a paid 45 minute phone consult that cost about $300. Best $300 I ever spent. So I'd ask, "Where are you finding these people?"
I believe those are generally considered mandatory for the validity and perhaps enforceability of any contract.
Without the independent witnesses, there could always be the question of whether the contract was voluntarily entered, and/or worse yet - forged.
I don't like to get into debates about legal issues or costs, since a lot of people just see lawyers as big $$$$$. But I just wanted to share that observation.
Olly, if you use a contract like this, do some research and add two witness lines and a standard acknowledgement provision for each signature.
See All Answers