Advice From Your Advocates

Demystifying Powers of Attorney and Healthcare Advocates

August 21, 2023 Attorney Bob Mannor / Attorney Michael Lebenbom Season 1 Episode 26
Advice From Your Advocates
Demystifying Powers of Attorney and Healthcare Advocates
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Have you ever been caught in the labyrinth of  long-term care for a family member - or as an elder care professional? This episode offers a beacon of hope with our guest, the accomplished attorney, Michael Lebenbom. He gives us a glimpse into his personal journey into law and his unwavering drive to advocate for individuals trapped within the complex machinery of the long-term care system. From his father's legacy to his remarkable work in the Healthcare Association of Michigan, Michael's experiences shed light on the human face of probate court and the critical role of an attorney in crafting calm amidst the storm of anxious family members and legal proceedings.

We further delve into the intricacies of elder law, discussing the protection of Medicaid funds and the imperative of patient advocate designations. Michael's unique insights underline the importance of safeguarding the welfare of those in need while ensuring due compensation for care facilities. We also tackle the gritty realities faced by certified nurse aides and the impact of financial constraints on all members of skilled nursing teams. Brace yourselves as we navigate these intricate waters of elder law and the indispensable role of patient advocacy.

Lastly, we examine the potential pitfalls of legal documents like a durable power of attorney for finances and a patient advocate designation. Michael warns against the dangers lurking in form documents that could inadvertently restrict qualifying for Medicaid. He underscores the risks of misuse and the chaos that could ensue. Tune in to this riveting episode and journey with us through the labyrinth of elder law, packed with invaluable insights, personal anecdotes, and a renewed faith in humanity. Don't miss out on an opportunity to demystify the world of elder law and fortify your understanding of the long-term care system.

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ABOUT US:
Mannor Law Group helps clients in all matters of estate planning and elder law including special needs planning, veterans’ benefits, Medicaid planning, estate administration, and more. We offer guidance through all stages of life.

We also help families dealing with dementia, Alzheimer’s disease, Parkinson’s disease, and other illnesses that cause memory loss. We take a comprehensive, holistic approach, called Life Care Planning. LEARN MORE...

Bob Mannor:

Welcome back to Advice from your Advocates. I'm Bob Mannor. I'm a certified elder law attorney in Michigan. We have a great guest today. I'm really excited about talking to Michael Lebenbom, a friend of mine and a very talented attorney who represents the long-term care industry, and he represents the management and the companies in the long-term care industry. Welcome, Michael.

Michael Lebenbom:

Thank you. Thank you for inviting me.

Bob Mannor:

I really appreciate Michael. I think he might be the only person that we've invited back to speak at Bootcamp twice. He's been one of our featured speakers at our elder law and advocacy Bootcamp. He did so well We've invited him back a few years later. Thanks again for that too, mike.

Michael Lebenbom:

My pleasure, I assure you.

Bob Mannor:

Michael, I always find it interesting to hear the stories of how you became the person that you are. Why did you become an attorney? How did that happen? Did you always want to be an attorney? How did that come about?

Michael Lebenbom:

Well, my father was an attorney. In fact, our firm Lebenbom and Rothman that Lebenbom is not me, that was my father who started that. He started the firm back in the early 60s. He was unable to get into a larger firm, even though he was a very talented person because there was some prohibition on allowing Jewish lawyers into some of the larger firms in Detroit. He started his own firm and created a niche of working with long-term care facilities, skilled nursing facilities in particular.

Michael Lebenbom:

Of course, I grew up with all of those types of mugs and paper and all that sort of stuff. My father was one of the people who started the Healthcare Association of Michigan. He was the first lawyer there were still the lawyers for the Healthcare Association of Michigan, so I grew up into it. Then I went to law school, obviously to follow my father's footsteps. I wanted to get to know him better. It was such a pleasure to be able to work with him for 20 years and really get to know him in a way that I never would have understood him had I not done that. I became a lawyer primarily to get to know my dad. To be honest with you Now, obviously I do it for a very different reason I get a lot of pleasure out of.

Michael Lebenbom:

Like the seminars I do quite a few of those during the year. I enjoy that a lot. I like to also work with my staff to help the residents in the facilities. In our group we really take pride in the fact that we are helping people. We're not just hired guns going out and doing all sorts of terrible stuff.

Michael Lebenbom:

We're really working hard to do what's right for the residents, because in the probate court system and I don't need to tell you this the center focus is the person, the resident or whoever it is. It's not my client, it's not some family member or anything like that. The central focus really is the individual. I get a lot of pleasure out of being able to help the individual, obviously while helping my client if I can, depending on the circumstances, but it is very satisfying. Again, I don't need to tell you this because I'm sure you experience this all the time it's very satisfying to help people to resolve problems they're experiencing. Of course, the problems I deal with can be a little bit more nefarious than the problems that you deal with. That's a very satisfying aspect of what I do, so that's why I do it now in any way.

Bob Mannor:

So that's really interesting, michael, and I definitely see that it's one of the things that I found about the lawyers that work within the long-term care industry both on the elder law side and on the probate and guardianship side of things that you really, if you're going to be doing this for an extended period of time, you really have to have a passion for and really be about wanting to solve problems and help people. And yeah, sometimes, you know, I would imagine and we'll get into this in a little bit, but I would imagine sometimes you're having to walk into a situation where there's family squabbling and you know that things aren't being taken care of maybe parents aren't being taken care of and you have to go in and really make sure that things get cleaned up and that there's somebody in charge and that mom and dad aren't being taken advantage of right.

Michael Lebenbom:

Yeah, in fact, you know that that's one of the more satisfying aspects of this job is that.

Michael Lebenbom:

You know, unfortunately I'm a bit cynical after 30 years of doing this. But sometimes we have family members who I mean, this is a difficult situation, right, they are, they feel bad because their their parent is in a nursing facility. They feel guilty about that even though they really shouldn't, but it's hard to avoid that. So when they come into a court situation which is also very scary and, you know, very abnormal for most normal people you know it's an opportunity for me to take them outside and have a conversation with them about how the court system works, give them a better understanding of what we're trying to accomplish and often not nearly as often as I might like, but often we're able to calm people down and get them to understand what we're trying to accomplish and get them on board with the goals that we're trying to achieve, whether it be to move us forward on Medicaid or, you know, or try to deal with a, you know, with a problem related to medical care, that sort of thing.

Michael Lebenbom:

So you know, I have had the pleasure of working with you on more than a few occasions where you're on the other side, if you will. I mean technically on the other side. But one of the one of the great things about being in this particular niche of working in the probate system is most of us know each other, so we're able to communicate in a way that is not aggressive or mean, and we all understand that the probate judges for the most part are really pretty gentle, kind people. It's not like a court that you see on TV, and once we get into that situation I think everybody sort of calms down a little bit most of the time and we're able to work out problems. And if we can't, then we know that the person who's being aggressive is the problem.

Bob Mannor:

So I want to take a minute for our listeners and make sure that they understand, sort of the, what we're talking about.

Bob Mannor:

If you're not a lawyer and you don't really get involved in this type of stuff, so normally you would get hired by the, by the, the health care facility right, you'd be, you'd get hired by the, the company, whereas I'm usually going to be hired by the family or by you know, by the person needing the care. So that's sort of the distinction and it can be. Sometimes we kind of joke about it, saying that we're kind of on opposite sides and the reality is we're not, and I think it's. It's really a good thing that we don't look at it that way. But in the sort of the legal community and the way that people think about their having to be two sides and opposing each other, that is sort of what it's, it's set up for in the court system or in the legal community. But the idea, if we look at it as no, we're trying to get the best result here, we're trying to solve problems here then it doesn't really come across as being opposing counsel, even though that's the way the court system might look at it.

Michael Lebenbom:

Oh yeah, and, and in fact you know, I sort of pushed all of my business away from the circuit court and the district court because in the probate court system we really are all trying to work together to get the best result for the individual, and that's very satisfying. I mean, you know, obviously you advocate very vigorously for your clients. You want the right thing for them. I mean, you know, most of the time you and I don't see each other in court because you've already planned things out. You do it the right way. By the way, I'm not getting paid for this. This is a sincere feeling. You know I really do your celebrity endorsement.

Michael Lebenbom:

I refer cases to your firm because you do things the right way, and so I don't end up seeing you very often in court, and when I do, we both know, okay, this is something we need to work together to resolve, and we do, and that's a really satisfying area of the law, because in most other areas of the law it is very adverse. Everybody's fighting with each other and trying to take advantage of the other side, and that's not at all the way we practice lots, and to me that is the most satisfying part of it, you know.

Bob Mannor:

So yeah my listeners have heard me say this before that I started out in litigation and this is a much more attractive practice area for me because I always felt in litigation that I was more of a cog in the system, and what I meant by that was that two experienced lawyers on opposing sides of any litigation matter typically could probably come pretty close to what the result's going to end up as, but they still have to fight it out for a year and a half or however long the court will give them, whereas that's not what we're doing here. We're trying to come up with those solutions as quickly as possible, move it forward and not and whereas, like you say, district court, circuit court, the tendency is, nope, we got to go through the process and maybe by the time we get to mediation, we'll start seriously talking about settling this. But it's not the same dynamic that you're going to have in those different court systems.

Michael Lebenbom:

Right, and your initial question is how is? Why am I hired? Why do people contact me? And unfortunately, most of the time they're contacting me because somebody close to the resident is misappropriating money or not assisting with Medicaid or a combination of those two things misappropriating money or sometimes property or both and so we have to go in and we have to get somebody that's going to protect that resident from a family member basically stealing their social security money or their pension, Because and obviously it advantages my client because they have to be paid. And the way I don't need to explain this to you, obviously, but Medicaid works is that Medicaid will assign a monthly patient pay amount, which is the I'm sure you've mentioned this many times before how that works and that comes from a person's social security or pension or combination of two, and when family members are receiving that money and using it for themselves, that's misappropriation and it endangers that resident by putting them in a position where they can be involuntarily discharged from the nursing facility.

Michael Lebenbom:

And of course, I always advise my clients don't do that, Try not to do that, no matter what. Let's see if we can go through the probate system and fix that problem through the system. And again, one of the great things about getting into that system is that the judges expect that, the lawyers expect that and, as a result of that, we are able to work things out almost invariably, provided that we have cooperation from all sides.

Bob Mannor:

That's the idea. I always say this to my clients too. Yes, we're trying to get Medicaid approved soon, or sometimes we're trying to protect some assets, as allowed under the law, but our goal is always to get the care facility paid regardless. I mean they've got to get paid. This doesn't work without the care facility getting paid. It's going to affect everybody else. If this is an important part of that that's why it's really not adversarial in that regard is because everybody has the same goal, which is protect the person that needs the help and make sure the caregivers get paid the care.

Michael Lebenbom:

Right. The other part of it is that and a lot of people don't understand this that nursing facilities run on a very tight margin. There's not a lot of extra money there. If they are losing thousands of dollars a month on one person, that means they have to cut back someplace else. Now, they'll never cut back on basics, they'll never cut back on food or some of these other things, but maybe some of the extras get cut back. Maybe they don't have those barbecues or maybe they aren't able to take people out for shopping or a ball game or something like that.

Michael Lebenbom:

We have to remember, of course, that the people that are working in that facility they all rely on that too, the hardest. I've always said that, as relates to my clients, the hardest working people are the certified nurse aides. They have the most difficult, horrible job. When money doesn't flow into the system, that can affect bonuses for them and extra money for them and that sort of thing. So it is super important for us to be able to make sure that everybody is paying their way there. It's not like they can just afford to lose thousands of dollars and it doesn't have any effect on people.

Bob Mannor:

Right, absolutely To take things in a little bit of a lighter turn, you had mentioned about the activities that they do there and that they have that they maybe have the barbecue where they're able to go out to something I always like to talk about the Elvis impersonator. So there's a few Elvis impersonators that will go around to the different facilities and I like to tell the story about the time I had to follow the Elvis impersonator, so they invited me to speak, but I got to speak up.

Michael Lebenbom:

That's a tough act to follow. It's a tough act to follow. You're not going to get the kind of attention I suspect that Elvis impersonator does.

Bob Mannor:

So the other thing that you mentioned earlier is about following your father's footsteps. I was going to mention I'm not sure any of my kids are going to become lawyers. I don't know. You never know. My oldest is 17. So we don't know what direction the kids are going to go. But I did have two of them work at the office and it definitely was a nice experience Because, even though they sort of maybe knew a little bit of what I did to have them come and kind of see me at the office, and even though they'll probably not be lawyers, it was a positive experience. So I can appreciate that you saying that about learning more about your dad and knowing him better from being able to work with them. So that's a nice.

Michael Lebenbom:

Yeah, nothing would make me happier than to work with my daughter. Honestly, I envy your experience. I really do that to me would be a tremendous joy.

Bob Mannor:

And they just came in for the summer and just did odd jobs around the office, but it was nice to have them see me in that you know setting, so to say. So, yeah Well, tell me a little bit more about your firm. So I look at your firm as definitely the preeminent firm that represents the long-term care community, and so I think that's I mean, that's not even a controversial question, because basically, like you said, your dad was, you know, helped organize the association there. And so tell me a little bit more about your firm. Was it always with this focus or did you get start off in different things and kind of evolve into this? Tell me a little bit more about Lebenbom and Rothman.

Michael Lebenbom:

Well, when my father began it, it was mostly dealing with regulatory issues. You know, my father helped to draft the public health code and so he had tremendous knowledge in that area and there was sort of a different regulatory scheme back in those days. So a lot of his stuff was administrative law and he was well known across the state for being an expert in administrative law. But over time that changed quite a bit. So appeals and administrative law just wasn't a very big part of our business. So I started to develop this business because I started to notice that we had these problems where nursing facilities were incurring very, very large debts because they couldn't get somebody on Medicaid or they couldn't get their monthly income to pay their Medicaid patient pay amount or a combination of the two, and sometimes it was just because family it's difficult.

Michael Lebenbom:

I mean, that's why we have experts like you dealing with Medicaid. It's hard to apply for Medicaid, it's hard to manage the money in a way which is allowed by Medicaid, and so sometimes people were just overwhelmed by it and we can find ways to help them, or did find ways to help them, and so that kind of built into a much bigger business as we discovered that there were a lot of nursing homes that were dealing with a tremendous amount of debt that could be resolved simply by going to probate court and getting somebody in charge that could either stop the person from misappropriating money or help the family to deal with the problems in a more meaningful and successful way. So we developed that kind of business from that and then, of course, my basic desire to avoid the circuit and district court situations, because it's just unpleasant, it's not like what you and I do. So that's kind of how we developed into where we are now, and Very nice. Yeah, it's been a pleasure to work in this field. I can say that.

Bob Mannor:

So one of the main topics that you've talked about at boot camp is what I call substitute decision making, or sometimes what I'm referring to talking to non-lawyers I'll say your lifetime documents versus what happens after you die, and I really appreciated the way that you present on this and how thorough you are, but also some of the key distinctions that you make between the documents and the use of the documents and how they're signed and things like that. So walk us through, understand that there's going to be all levels of listeners. There's going to be some people in the long-term care industry that are listening. There's going to be people that are not part of the long-term care industry and maybe just interested in these senior topics, and so for folks that don't really understand what documents are involved, kind of walk us through what documents are important to be, to get in front of these things, so you don't end up hopefully you don't end up having an issue that goes through probate court.

Michael Lebenbom:

Yeah, I think probably you've covered this topic many, many times and without knowing what you said. I agree with you. People should have a patient advocate designation. We can start there, and that's a tough thing to get and deal with, because nobody wants to deal with their mortality. I myself didn't even have one until fairly recently, because it's hard to think about your own mortality and to make decisions that are going to affect your future life when you're unhealthy. But it is so critical for people to do that as soon as they possibly can and to help their family members do that as well. So my first thought on it is that everyone should do it themselves and, before they start preaching, practice what you preach. Get one yourself, because that way, when you go and talk to people like your siblings or your parents or your children about getting a patient advocate designation, you could say, hey, I've got one and it's important that you have one as well.

Bob Mannor:

Let me tell you a quick story about that. Several years ago this has been quite a few years, but several years ago I had an opportunity. My office manager was on bed rest when she was having a baby, and so my sister came in temporarily as my office manager and two of my brothers worked at the firm at the time and they're not lawyers, but they worked at the firm in various capacities and so my two brothers and sister and myself all were working in this area of law, telling people every day you need to have these patient advocate forms, you need to have, you know, make some decisions about end of life decision making. And it was at that time that my parents approached us and said well, we need to have this conversation. And even though the four of us were having these conversations with people every single day, we still our tendency was like now I'm a dad, we don't want to talk about this. That's what we need to be talking about right now.

Bob Mannor:

So it is difficult, like you say.

Michael Lebenbom:

It is, and I think the other part of it is that you know people need to understand that if you don't make those choices and then those choices have to be made later, the court's going to choose who makes those choices and they're going to be limited in the types of choices they can make. So the great thing about patient advocate designation, of course, is that you can choose end of life decisions that a guardian is not allowed to choose. So it's always best you know to choose yourself how you want your future to be. Now, one of the problems that I have encountered is that there are people who don't have anyone to serve as their patient advocate and I had kind of researched this a bit before this conversation and I've used this before in court. But in Michigan, judges are allowed to grant to guardians the authority of a patient advocate designation. Okay, so the key is to find anyone that you know. When you're in those very difficult situations where you don't have anyone that you either trust or anyone, to just create a patient advocate designation is perfectly okay. Choose anyone you can think of to put in there, because in the event that you need a guardian, the court will have the authority to grant that guardian the ability to make life-ending decisions on your behalf. And of course, that's the great thing about a patient advocate designation. If that's where you want to be, If you want somebody to be able to make a life-ending decision to you know to stop hydration or to you know not to send you back to the hospital, that sort of thing, not to do CPR, the patient advocate designation is the most effective way to accomplish those goals.

Michael Lebenbom:

It gives you complete control over your own destiny, and so it's so important and I'm sure you've emphasized this many times in this and your podcasts and I've seen you do it in person it's so important for people to have those very difficult conversations, and I think it's also helpful that when children go to their parents, that they say to them look, we can get you the forms.

Michael Lebenbom:

I don't care who you choose, you don't have to choose me, Choose whoever you want to do this work. But it is so important that you make those choices, Otherwise the courts are going to make them for you and they are likely to not be the same type of choices you're going to make. So I think patient advocate designations are a wonderful tool and, of course, it eliminates, for the most part the court system. So we don't need to go into court and get a guardian for somebody who has a patient advocate, unless that patient advocate is acting in a way which is against the wishes of the resident or is otherwise acting against the best interests of the rest, or is unresponsive, basically Right.

Michael Lebenbom:

Or is unresponsive.

Bob Mannor:

I want to clarify a couple of things on that. So a lot of times in Michigan the patient advocate designation which is the, I think, the preferred term often the document is called a health care power of attorney. So I don't know why that is. I wish people would just use that other term, patient advocate designation, more, but it is very common for, when the lawyers draft them, to have it be titled. So, just if you are looking through your documents and say, hey, I don't have a patient advocate as a nation, you might have it. It might just be called a health care power of attorney. But the other thing I wanted you to clarify and you already said this, but I wanted to just highlight, have you highlight it when does that person you appoint take over? So often when we sign these documents, somebody will joke and say, oh, you're just going to pull the plug as soon as I get a call. So explain when that actually takes effect.

Michael Lebenbom:

Well, yeah, I just on your first point real quick. It can be called a durable power of attorney for health care or a health care durable power of attorney. The statute calls it a patient advocate designation, and you and I are the only two people in Michigan that use that term, you know. So a patient advocate designation or durable power of attorney for health care doesn't come into effect until the attending physician and one other physician or licensed psychologist make a determination in writing after visiting with the individual that they are no longer capable of making their own medical decisions. They have to sign it and date it and make it a part of the medical record. So, and even then, depending on how the patient advocate designation is drafted which is why it's good to have somebody like you draft them, because you can be very specific, whereas if you get the forms online, they work many of them, some of them don't, but they're not specific, and it's to me it's always helpful to have them be very specific so that the real wishes of the individual are, you know, are followed. But you know, just because you get sick or because you're in a nursing facility doesn't automatically mean that you're not competent or can't make your own medical decisions.

Michael Lebenbom:

We often have people that will come into a nursing facility and they might be incompetent in the beginning because they've just come from the hospital and they're recovering from something very serious. They might be on pain medications and then over time, as they get better and recuperate, they become capable again. Now under the statute and of course I advise my clients they should monitor that and as they get better and better, at some point they should notify the patient advocate or the decision maker medical decision maker that the resident is now capable of making their own decisions and that suspends that document and the right to make those decisions. So then the individual can make their own decisions again and that happens from time to time. So it's not a permanent situation.

Michael Lebenbom:

It can actually be revoked at any time and in any way that the individual can communicate that revocation. And I talked with one of the people who was the original drafter of that patient advocate designation or durable part of attorney for healthcare statute and he said, yeah, we want it. No matter what they did. If it looked like a revocation, we wanted it to be a revocation. So at any time if you wanted to revoke that decision, you can, yeah, simply just say I don't want that person anymore, I don't want that anymore, and that's enough.

Bob Mannor:

So you know and that's something that actually does surprise a lot of people is that even after you've been declared incompetent, you can still revoke your patient advocate, and it's an important safety valve. It also can result in some difficult situations where someone is clearly not capable of making good decisions and yet they you know they revoke their patient advocate. We actually put in and I know this is not particularly common, there's a number of lawyers that do it, but it's not particularly common we give our clients the option of concluding a provision from the mental health code about having a 30 day cooling off period so that if you choose this option, you would be able to. Even if you revoked your patient advocate, it doesn't become revoked until 30 days after you attempt to revoke it or after you revoke it. That's for that situation where somebody and I've had a few of these, not very many in my 20 plus years of doing this, it's very rare, but a few situations where we had somebody that had severe dementia but was in denial and they refused treatment or they refused to accept the antibiotic or whatever it was that they were needing and they attempted to revoke their patient advocate. And so the only solution to that, if we don't have that 30 day cooling off period in there would be to immediately run into probate court and try to make sure that we you know if the person's not going to be safe.

Bob Mannor:

There was a court case I'm forgetting the name of the court case, but it was just, I don't know, maybe five years ago, where a woman was receiving some rehabilitation services after the hospital and she had been.

Bob Mannor:

I believe she'd been found on her kitchen floor we don't know how long she was there and some out of town relatives came in and kind of got her all riled up and say you shouldn't be in a nursing home. Our grandma's never going to go to a nursing home, and so she insisted that she go home while there was nobody home to be with her or take care of her. But she insisted to go home after kind of getting some riled up by her relatives, and the small nursing home said well, you can't go home, it's not safe there. And also you appointed your daughter, your granddaughter I'm sorry, your granddaughter to make these decisions for you. And I don't know exactly how it went down, but in my imagination she probably said where? Where did I say that? And so they may be shoulder the document and she ripped it up and there's a revocation for you.

Michael Lebenbom:

That's it. That's a revocation. Well, and I've represented nursing facilities where situations may be not exactly like that but very similar to that have happened and where you have family members, you know, riling up somebody, usually for bad reasons. They're usually misappropriating the money and they want them back home because that makes that easier, and we'll run in and get an emergency guardianship and prevent that from happening because it's not safe and that's exactly.

Bob Mannor:

The answer is that whenever that I get any kind of hint of that, I say you know what. You got to call the lawyer for the agency. It's probably going to be you guys, but you got to call them right away and they can. You know they can solve this problem. Unfortunately, the small nursing home of this case that actually ended up in the Michigan Supreme Court. They didn't do that, they just kept the person against their will and that's why it ended up in court.

Michael Lebenbom:

And they're not a client of mine.

Bob Mannor:

Yeah, exactly Not a client of yours, because that wouldn't have happened that way. I'm certain of that and if you look, I can't remember the name of the case, but it was. You can tell just by reading the case.

Michael Lebenbom:

It was a small, rural nursing home that wasn't part of any larger organization or anything like that, and if it was five years ago, that's, there aren't very many of those left anymore. That's true, that's very true.

Bob Mannor:

Okay, so, then, one of the things that I learned from you and we've always done it this way, but you made a point of saying that it has to be done this way which is it? Should the financial power of attorney and the patient advocate be part of the same document, or are those separate documents?

Michael Lebenbom:

Yeah, in my opinion they really always should be separated. And and I would warn people and I'm sure you have to that trying to pull a durable power of attorney for finances off the Internet is a very risky business.

Bob Mannor:

Absolutely.

Michael Lebenbom:

I've never really actually seen a good one in 30 years and I've run across a bunch of them that people pull off the Internet because that really requires the skill of an attorney to draft one of those. There isn't. There's no statutory form or any of that sort of stuff. It's very different from a patient advocate designation, because there are many organizations including, like I believe, the state bar at Michigan that have created patient advocate designation forms, but there aren't really any good durable power of attorney forms. But one of the big problems that I've run into when people try to put them together is that there are very specific requirements for a durable power of attorney for healthcare patient advocate designation and if they're not met then it's not a valid patient advocate designation. So when people try to create the durable power of attorney for finances, they put language in there that automatically makes it, you know, voids the medical side of things, right? No, the medical care side.

Michael Lebenbom:

So what I do recommend and obviously you do too is that you have two separate documents. It should always be separated. That way, for example, you could have a durable power of attorney for finances come into effect right away, and of course it's a very different relationship, right? A person who is an attorney in fact under a durable power of attorney for finances, that person has the right to act on behalf of the individual, but not the obligation. So they, in other words, they can also do something with the money, but they don't have to, whereas a patient advocate if they come into, you know if everything is met and now they have the power, they have to act. They have a fiduciary responsibility to act in the best interests of the individual. They have to make medical decisions or they have to withdraw. So I think it's a very bad idea to try to squeeze the two together, and so everyone I've ever seen has been. Sometimes it's okay as a durable power of attorney for finances, but it has never been okay as a patient advocate designation. So I don't recommend that.

Bob Mannor:

And I entirely agree with you.

Bob Mannor:

There is no good form financial power of attorney or legal power or durable power of attorney.

Bob Mannor:

It is I remember my old law school professor used to call it the most dangerous document, basically, and sometimes it's a license to steal, you know, and it's right. It can be misused, it can be, and the drafting of it can be very problematic. So I was speaking with another attorney and she brought up the idea of some of these form powers of attorney that might have some restrictive language in it. And so what she was saying is look, if we have a power of attorney that has some restrictive language and the family needs that authority later on and goes into a probate judge and asks for that authority, the probate judge would be well within her right to say no, they've already expressed their intentions and it's in this. Now they didn't know they were expressing their intentions because it was just some form that they filed, but not having the legal authority that we need, because somebody stuck a paper in front of them that was a fill in the blank, and now the judge feels you know, bound by that.

Michael Lebenbom:

And that's a very legitimate argument. I mean, a good judge would look at something like that and come and conclude that way because you signed it on purpose.

Bob Mannor:

Exactly, and so, as an example of that for the people that you know, I don't want to be too evasive about what we're talking about. One of the things that often is in the power of attorney is the ability to do certain transactions that could help you qualify for Medicaid, but most of the form documents don't have that language. In that you signed a form document, we might not even be able to go into court and ask permission to do the planning necessary to qualify for Medicaid. So it's very dangerous to sign any form that somebody shoves in front of you, maybe a fill in the blank form or internet form, especially when it deals with finances.

Michael Lebenbom:

Yeah, and of course you know we encounter unfortunately too frequently people who are going in and having incompetent residents sign powers of attorney and and then using that and this has happened on many, many occasions, unfortunately not to go too dark where they use that document to transfer property to themselves or or go into a bank account and clean out the account. So that's usually when I get a phone call.

Bob Mannor:

And you and I both know this that often and the there are times there are freak, there are, there's some bad people in the world. Let me put it that way.

Michael Lebenbom:

Yes, absolutely.

Bob Mannor:

But there's some good people that don't know any better also, oh yeah, absolutely true.

Michael Lebenbom:

Not only that, but truthfully, since we see each other not nearly as frequently as maybe we did, you know, many years ago, you get those people who are trying to do it the right way. They're coming to your office, they're trying to do everything the right way. I get the other people. Yeah, I get the other ones, that's. That's when I get the phone call. So my cynicism is based on the fact that my clients never call me up and say, hey, everything's great. You know, nobody. Nobody ever calls me with that message. So I'm a little more cynical, because I don't encounter it quite as often as you do, but when I do, it renews my faith in humankind, every single time.

Michael Lebenbom:

I just, every time I see somebody who just wasn't sophisticated enough to understand ahead of time, and I meet them and I talk to them and I recognize they're actually good people who just are overwhelmed or don't understand, I will do, I will go out of my way to do everything I can to help them to succeed, because I really, you know, I believe people are good. You know there are plenty of bad people in the world, but I there are also an equal number of good people in the world and when I see one, I'm always. It always renews my faith in humankind.

Bob Mannor:

Well, Michael, we've talked about some of the legal documents that we recommend for folks. That will often help them stay out of court. Let's talk about the court processes now the guardianship, conservatorship, any other processes that if you can help sort of explain to the listeners how those work.

Michael Lebenbom:

Sure. So guardianship, let's imagine we're in a situation where you have a family member who is in in my case, in nursing facility and they don't have a patient advocate designation and they're not competent to create one. Well, my clients will always need somebody who is able to make medical decisions. So they will contact me and say we need to guardian. Now, obviously it would be much, much better if the family goes in, and usually that's a sign that the family is caring and loving, and the judges always prefer family members over anyone else. I prefer family members over everybody else. We want somebody who knows and loves the individual to be making those types of decisions. So we will go into court and in the situation where we don't have somebody like that, we'll go into court with a petition and we usually ask for a professional guardian conservator to be appointed. Sometimes family members will show up and they'll say hey, I didn't know, you know, I didn't know what was going on because my brother didn't tell me or whatever. And then we work with them to try to get them appointed and show them how to be a good guardian and that sort of thing. But somebody has to be in charge, somebody has to be able to make medical decisions. So guardianship is the most effective way of for my clients of resolving the problem of having somebody in place who is actually authorized to make those decisions which they must have under the federal regulations. But it's also wonderful for the resident and hopefully for the family members who step up. I have a judge that I go in front of frequently who says I know you feel a moral obligation, but this is a legal obligation. It does require you to do certain things. You have to visit every quarter, you have to file an annual report on condition of ward, but those things are not very difficult to do. They're actually fairly simple. As long as you keep track of everything, it's quite easy to do and I hope that, after listening to this and your other podcasts, that the folks who are not in the nursing home industry, that the lay folks, will look into that if they haven't already, if they've lost the opportunity to have a patient advocate designation signed, that they will be the ones to step up and go in the probate court and file those petitions for guardianship and possibly conservatorship.

Michael Lebenbom:

On the conservatorship side of things, usually we need to get a conservator because there's some asset that disqualifies somebody for Medicaid, but they don't have enough money to be able to justify using, for example, your services. Maybe it's a life insurance policy that has a cash out value of $2001. Right, for example. And so you need a conservator to be able to help with that. They might have a piece of real estate that needs either management or needs to be sold because the individual might unfortunately not be able to go back. That would be another reason we would need a conservator in order to manage that property, hopefully, but if necessary, to be able to sell the property and do what needs to be done, because sometimes residents in the nursing facility they can't pay the mortgage and you don't want the house just lost without any value to the resident. So we would go in and try to get some value for the residents who's not just lost to a mortgage, to mortgage for closure.

Bob Mannor:

So Very good, and so one of the questions that we get all the time I'm sure that you hear this is is the person who accepts the appointment as a guardian, or accepts the appointment as a conservator, or even accepts to act as a power of attorney or patient advocate, are they gonna be personally liable for the debts of the person they're trying to help?

Michael Lebenbom:

Yeah, and I do get that all the time. And of course the answer is no. You're not personally liable unless you do something wrong, in the sense of you make a decision to steal money or misappropriate assets or do something that results in a loss to the person that you're the guardian or conservator over, because you've made an intentional choice to do that. So the primary example, of course, is if you steal a social security money, yeah, you're liable for that. If you transfer property to yourself from the resident, you're liable for that. But if the resident comes in and they owe a bunch of money to Visa or they owe mortgage payments or any of that sort of stuff, no, you do not take on any of the resident's liabilities, financial or otherwise. You're just there to help them make decisions moving forward. So as long as the person is doing it with good intentions and doesn't misappropriate anything, they have nothing to fear about doing that.

Bob Mannor:

Michael, thank you so much for helping us out today and getting us this great information. Is there anything else that you'd like to remind, especially, maybe, managers or employees of long-term care companies, any final tips or anything like that that you would like to leave with them?

Michael Lebenbom:

Well, I think the main thing I would say is something I had said earlier. I really want to get out the message that it's important for people to make their decisions while they're competent. Get a patient advocate designation, get a durable power of attorney. Choose the people that you want to be making decisions for you, for the nursing facility folks, I would say when you have a situation where somebody is misappropriating money or not cooperating, don't let it wait, don't let it last for very long, because it can be very, very expensive if you don't take action quickly. And, of course, we can give you some advice on that if you're interested and we're happy to do that. And let me just end by saying this is really a pleasure. I greatly respect you and I've known you for years. I consider you my friend and I really appreciate the opportunity to do this and to give those seminars, which I really enjoy doing, and I thank you for that.

Bob Mannor:

Well, thanks, michael. This is always great to talk to you and you always have such great information and advice, so very much appreciate your time today and helping us out. If you like our information, if you like our podcast, don't forget to subscribe, and you can hear our podcast on any of the podcast services. You can go to our website and subscribe there or any of the podcast services. So until next time. Thanks for listening to advice from your advocates.

Michael Lebenbom:

Thanks for listening. To learn more, visit mannorlawgroupcom.

Elder Law Attorneys Discuss Advocacy Work
Protecting Medicaid Funds and Care Facility Payments
The Importance of Patient Advocate Designations
Revoking Patient Advocate and Power
Legal Documents and Court Processes

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