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Hiring a Home Health Aide: The perspective of an Elder Law Attorney
by Scott M. Solkoff

Home health aides provide caregiving services to help keep people in their own homes or to provide attendant care services in a facility.  Home health aides are paid relatively little money for doing highly personal, tough work.  Most of my clients would not want to do the tasks these caregivers do for $12-$25/hour.  Still, even at those rates, the cost adds up and can seriously impact savings or wipe people out.

There are three primary venues for securing home health aides.  From the lowest hourly rate to the highest, they are: (1) finding someone by word-of-mouth; (2) going through a “registry” or (3) going thorough an “agency.”  Hourly rates are not the only cost that must be taken into consideration when hiring a home health aide.  There are insurance, tax and other liability issues that should be considered as well as safety and reliability.

Word of Mouth: Many of my clients come to me already having hired a caregiver based on a referral from someone they know.  A neighbor, friend or relative might have worked with this caregiver in the past and given his or her name to my client.  These workers can be very reliable because they may have already been vetted by someone you trust.  Because they do not come through a registry or agency, all the money you pay the caregiver goes to the caregiver and you have cut out the middleman.  This can be a cost-effective solution if it were not for certain hidden costs.  For one, if the independent caregiver gets sick, moves away or just does not show up for work one day, it may be difficult or impossible to arrange for a quick replacement.  Some people cannot risk even a day without care.  Good home health companies would be ready with a quick replacement right away.  Independent caregivers are generally not insured for malpractice.  If something goes wrong, there is usually no recourse.  Independent caregivers are generally not insured for risk should they become injured on the job; that could be a liability of yours as the employer and/or homeowner.   You could do your own criminal background check on a caregiver but I find that few people actually take this step.  Some independent caregivers are independent because agencies and registries will no longer hire them due to past violations of trust.  Another “hidden” cost to the independent caregiver is that you are the employer and this means that you must deal with withholding taxes.

Registry: A home health registry is like an employment agency for home health aides, a matchmaker service which places home health aides with people who need them.  The caregivers are not employees of the registry but instead act as “independent contractors.”  The employer is typically the person receiving the care or some family member or fiduciary acting on behalf of the person receiving the care.  A good registry attempts to make the best match based on personality, health and other factors.  Because a good registry will have many home health aides to call upon, the registry can be effective in quickly getting another person to the client if the prior aide is not working out.  Registries typically perform background checks, provide some training and most require the caregiver to carry a minimum amount of malpractice insurance.  Still, the caregiver is not an “employee” of the registry and so the responsibility and liability of being an employer still rests with the person receiving the care or that person’s agent.  Registries will pay a percentage of the fee they collect to the caregiver but the registries do not withhold taxes.  Also, since the registries do not provide workers compensation insurance, bonding or full liability insurance, the client takes on that risk and the financial jeopardy.  Because the registry has lower costs and takes less liability and responsibility, not being the employer, registries can charge less than agencies and therefore provide a lower hourly rate.

Agencies: Agencies have a true employer-employee relationship with their caregivers.  The agency does all that a registry does including training, background checks and malpractice insurance but also takes on all the responsibility of an employer.  The agency deals with all withholding and tax matters, pays for a bond, workers compensation insurance and sometimes other employee benefits.  The cost is higher with an agency because the agency is taking on these other costs and responsibilities.

I have clients who have secured aides using all three of the above venues.  Each has pros and cons.  Like all businesses, there are good and bad.  Talk to your advisors in the elder care world before hiring a caregiver and gather the best information before making a decision.  If you are using a registry or agency, ask the company about what it provides and does not provide as there are differences.

 As we continue to hear of the staggering budget cuts to our court and social services systems, it is time for us to consider what we can do to lessen the impact of limited resources on us and our families. Florida’s social services network and judicial system will not have the capabilities to efficiently and effectively address surrogate decision making for adults or children.

Although we all want to believe we will never become incapacitated, a simple car accident, slip and fall, or other incident can cause the healthiest of people to lose their ability to make informed decisions. All persons over the age of 18 should formally designate someone to assist them with decision making if the unimaginable should happen.

Human nature dictates that most persons will not take the time to plan for incapacity. The need to designate someone as our surrogate decision maker only increases as we grow older, since the ability to make informed decisions may become hindered with the effects of aging. The need is further complicated as we may have also acquired assets and have family members who depend upon us.

In addition to durable powers of attorney and health care surrogate documents, it is important to put your estate planning wishes on paper as well. Nobody likes to think about their own mortality, particularly if you have young children. Well intentioned parents secure child care for evenings out or trips away but few secure the wellbeing of their family if the worst should happen. A critical component of being a responsible parent, young or old, is ensuring loved one’s personal and financial needs are met when the parent can no longer do so.

Unexpected life-altering injuries occur every day and permanently incapacitate or result in death. All persons over the age of 18 should formally designate someone to assist them with decision making if the unimaginable should happen. Advance directives are one way to make that designation. An advance directive is a witnessed written document or oral statement in which you express your wishes concerning your health care. Because people don’t take this important step, the demand on the social services and judicial systems will continue to grow. To keep Floridians out of “the system” we need to emphasize the importance of planning. In addition, parents need to choose, while they have the ability, who will care for their children so the court does not have to later.

When people do not take the time to designate a surrogate decision maker, and they become incapacitated, chances are good they will end up in the guardianship system until they pass away. Guardianship is the court process designed to protect and exercise the legal rights of individuals who lack the capacity to make their own decisions and have not made plans to address this possibility. Guardianship is expensive, time consuming and very intrusive.

No matter what our age or current health, it is never too early to plan. Every person over age 18 should have an advance directive and every parent of a minor child should have estate planning documents. Florida’s social service and court system will not have the capacity to efficiently resolve these issues for us.

The two-step guardianship process consists of:

(1) the incapacity proceeding and (2) the appointment of a guardian.

 The incapacity proceeding involves the court appointing a three-member panel to conduct an examination of the alleged incapacitated person. The court also appoints an attorney to represent the alleged incapacitated person. After the panel submits their reports to the court and the attorney has met with the client, there is a hearing. At this time the court will determine if the person is incapacitated and if so, whether there is some lesser restrictive alternative to guardianship available, usually an advance directive. If the person is determined incapacitated and there is no lesser restrictive alternative, then the court appoints a guardian.

There are many costs associated with this process. The examining committee must be paid. The court appointed attorney must be paid. The guardian and his or her attorney hope to be paid, as does the clerk of courts. If the “ward,” the person who has been determined incapacitated, has assets, the examining committee, court appointed attorney, guardian and guardian’s attorney should all be paid from the ward’s assets. If the ward does not have assets, the examining committee is paid by the Office of the State Court Administrator; the court appointed attorney will be paid by the state as part of the new Regional Counsel’s duties; and the guardian and his or her attorney will either be pro bono or a public guardian, if available.

 It is important to keep in mind that the guardian’s role continues for the entire existence of the guardianship. The guardian, who must be represented by an attorney, will exercise each of the ward’s rights that the court has delegated to him or her. There may be many times during the course of a guardianship when this will require the guardian to petition the court for certain acts, which costs money. There are also annual reporting requirements that must be adhered to, which cost money as well.

 No matter what our age or current health, it is never too early to plan for incapacity. Every person over age 18 should have an advance directive. The safety net for those who don’t plan may be guardianship, which is a time-consuming, difficult and costly process for both the government and the individual.

ELDER LAW BLOG
 By Heather Boyer Samuels, Esq., Solkoff Legal, P.A.

What is Elder Law?

First, welcome to our website, and to our blog!   For those of you not familiar with our practice here at Solkoff Legal, we practice, and indeed have a long history of practice, in the field of Elder Law.   For many years, we confined our writing to publishing various articles, many of which are available on this website under the “our library” tab, and of course, “Florida Elder Law”, West’s Florida Practice Series, the leading textbook on Elder Law for Florida, and for the U.S. 

As we delve into blogging, we want to remind our readers that the blog is not a source of legal advice.   Although we hope our blog will be a good source of information, it is no substitute for a consultation with one of our Elder Law Attorneys.  This first entry is a broad view of our practice areas—later entries will further define and explore the areas in which we practice, and the special consideration in each of those areas.

When I ask people what they think an Elder lawyer does, the answers range from, “I don’t know” to “estate planning for senior citizens,” to “nursing home abuse.”  In fact, Elder law is a broad, interdisciplinary practice, and at Solkoff Legal, we dedicate our work to helping families—the elderly, the disabled, their caregivers, and the community in achieving peace of mind. 

In fact, the distinction between traditional trusts and estates law and Elder Law is that Elder law practice focuses on a client’s lifetime needs.  The Elder Law attorney creates an estate plan for post-mortem disposition of assets.  However, the Elder Law estate plan is designed, first and foremost, to address an individual’s lifetime needs. 

FAMILY ASSET PROTECTION PLANNING FOR LONG-TERM CARE

Often, our clients and their families come to us in crisis, faced with the costs of assisted-living or nursing home care, and the fear of decimating their entire life savings in a matter of a few months.   Other clients, concerned with a recent diagnosis or the fear of burdening their families with their care needs, come in to educate themselves, and begin taking the steps necessary to plan for their eventual increased care needs.  We help these families and give them the peace of mind to live, knowing that the burden of long-term care can be shared, without spending down your life savings, and without a five-year waiting period.

Using legal and ethical planning tools that we pioneered, personalized for each family, we assist families with obtaining public benefits, including various types of Medicaid and Veterans’ benefits, to help offset the costs of long-term care.  We help clients obtain government assistance for care that they can receive in their homes, in independent and assisted living facilities, and, if and when the time comes, at the best skilled nursing facilities in the state of Florida.  

While we recognize that every family is different, our foundation approach remains consistent.  We utilize a mix of asset protection, refined estate planning, incapacity planning, and protection against estate recovery.  We handle the entire interaction with the government in the application for benefits, while providing guidance for quality of life.  The firm assists its clients to plan for, but also to deal with, the non-clinical aspects of long-term care.  As aging and caregiving events occur, you will be able to speak with a firm employee to get the answers you need or to obtain a Guided ReferralJ to the right source of assistance.

ESTATE PLANNING

Unlike estate planners, who do very good and valuable work, our planning seeks to achieve a care plan for families during life.  Estate planning remains a vital part of our practice.  Indeed, anyone over the age of 18 should, at a minimum, have a Will, a Durable Power of Attorney, and Health Care Advance Directives (a Living Will, and Health Care Surrogate Designation.)   However, our estate planning is a part of what we do as lifetime planners—we help clients and their families put together and refine a plan of care, so that as their lives change, they are legally prepared in case of an emergency or an unexpected change in health.  

GUARDIANSHIP & GUARDIANSHIP ADVOCACY

We help clients and their families in times of crisis.  Sometimes, the possibility of planning through advance directives and powers of attorney has already escaped us and families need to take legal action right away to protect their loved ones from exploitation and financial ruin.  When a person is incapacitated—unable to care for his or her own needs—their families or other concerned parties have the ability to petition the Court for the ability to act on behalf of an individual by having a Guardian appointed.   A guardian is a person appointed by the court to act on behalf of an incapacitated individual’s person or property or both, under the Court’s supervision.  A family member can assume this responsibility, or, the Court can appoint a professional guardian to serve. 

A guardianship advocacy is different than a guardianship in that it requires an individual to have one of five categories of developmental disabilities: retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that (1) manifests itself before the age of 18 and (2) constitutes a substantial handicap that can reasonably be expected to continue indefinitely.  It also does not require a finding of incapacity, as a traditional guardianship requires.  A guardian advocate is a person appointed by order of the Court to act on behalf of a person with such a developmental disability.  Most often, a parent serves in this capacity.   Parents of children with developmental disabilities should seek advice and the establishment of a guardianship advocacy so that they can continue to care for their child with a developmental disability after he or she turns 18. 

SPECIAL NEEDS PLANNING

In order for disabled people to obtain certain government benefits, they must qualify financially.  We utilize and individualize plans for clients and their families to plan for the long-term care of members of their families with disabilities.  These benefits are irreplaceable and their value cannot be measured. 

Testamentary gifts to individuals with disabilities
In our estate planning practice, we come across many individuals who wish to leave assets to their children, grandchildren, and other close family and friends.  When those prospective beneficiaries are receiving public benefits, the receipt of a testamentary gift can disqualify them from receiving their valuable government benefits.  Thus, as Elder Law attorneys, we make provision in our estate planning documents for those receiving government benefits to receive testamentary gifts without damaging their eligibility for public benefits.

We also come across parents of children with special needs and disabilities who want to make sure that their children have lifelong access to the public benefits upon which they depend.  They want to leave a legacy to their child and make sure their child is taken care of.  We help families set up third party special needs trusts in order to, provide for those things that are not covered by public benefits.  However, each family has different needs.  We establish and refine care plans on an individualized basis for families and individuals.

Settlement Protection
When a disabled person is set to receive a settlement, without proper planning, they can be disqualified from these desperately needed government benefits.  We use certain trusts that the government permits to allow the disabled person to maintain their benefits while also maximizing the settlement award for their care. 

PROBATE & TRUST ADMINISTRATION

When a loved-one passes away, no amount of careful planning can prepare families and loved ones for the emotional toll it takes on them.  Couple that emotional time with the legal requirements a family must take to handle their loved one’s estate and final affairs, and the process can be overwhelming.  At Solkoff Legal, we assist families and loved ones in handling probate and trust administrations after their loved one has passed.

Those appointed as Personal Representatives in Wills and as Trustees in Trust Agreements have special fiduciary duties.  Our firm helps families navigate the legal landscape and make handling their loved one’s final wishes an orderly process.  We help from the initial court filings through distribution, and advise clients as part of long-term trust administrations.

We invite you to comment and ask questions, suggest new topics for us to feature on our blog, and generally interact.  To schedule a consultation with one of our attorneys, we invite you to call our office at 561-733-4242.