Elizabeth Jessop, Attorney at Law

J.D., Lewis & Clark Law School, 2012

Elizabeth (Liz) is our newest associate attorney, joining the firm in 2012. Prior to pursuing her legal career, Liz had worked as a Waldorf School after-care teacher and in the natural foods industry. Liz is honored to have the opportunity to help our clients achieve their planning goals and assist them during times of transition.

Although Liz is a recent graduate of Lewis & Clark Law School, she has worked in the fields of trust administration, probate, and estate planning for over seven years. Prior to law school, Liz was a trust administrator at a regional bank in California. While an evening law school student, Liz worked during the day as a probate and estate planning paralegal at two highly respected Portland law firms.

At Lewis & Clark, Liz was an article editor for the Lewis & Clark Law Review and graduated magna cum laude. She received her bachelor's degree from the University of Virginia. She is a member of the Oregon Bar Association, Multnomah Bar Association, and Oregon Women Lawyers.

Planning for Second Marriages Later in Life

Valentine’s Day falls in February, so this month I wanted to write about love and marriage. With people living longer these days, it’s quite common for people to fall in love and get married later in life. A marriage in one’s 60’s, 70’s, or 80’s is a little different than a first marriage in one’s 20’s. Those twenty-something’s probably do not have much in the way of assets, and they’re certainly not worried about long-term care expenses. They also do not have to worry about how well kids from prior marriages will get along. All of these issues are important in a second marriage.

Many couples who get married late in life understand that they will share the ordinary expenses of life. They usually do not intend that a healthier spouse will have to spend his or her assets to pay for the long-term care of an ill spouse. It is quite a shock for many older people to learn that, if one spouse needs long-term care, the assets of both spouses are considered available to pay for that care. With long-term care costs averaging over $7,000 per month, careful advance planning is necessary to avoid impoverishing both spouses. To get the best result, this planning should be done as much as five years in advance of one spouse needing long-term care.

Another issue in second marriages involves estate planning. Did you know that under Oregon law, marriage revokes an existing will? Many people get married and do not know they need to update their will. In most second marriages, the parties have a pretty clear idea of how they want their property distributed after they pass away. But if you do not get into the lawyer’s office after getting married and do a new will, you won’t decide where your property goes. The State of Oregon will decide for you. So it’s critical to see an experienced elder law or estate planning attorney to update your will immediately after getting married.

A prenuptial agreement is valuable tool for second marriages later in life. In a prenuptial agreement, the parties to the marriage can spell out their agreement about how property will be managed, how bills will be paid, and whose funds will be used to pay for long-term care costs. It can also be used to define the inheritance rights of each spouse and of children from prior marriages. Children from prior marriages are greatly reassured to know that their parents are thoughtfully considering these issues.

As in all matters related to aging, people in second marriages who plan ahead get a much better result in times of crisis. Ideally this planning is done prior to the marriage. If you are already married, updating your wills and planning for long-term care costs should be done right away. The greatest risk is impoverishment of both spouses due to long-term care costs, which can be avoided by careful advance planning with an experienced elder law attorney.

U.S. Alters Rule on Paying for End-of-Life Planning

By ROBERT PEAR, the New York Times
Published: January 4, 2011

WASHINGTON — The Obama administration, reversing course, will revise a Medicare regulation to delete references to end-of-life planning as part of the annual physical examinations covered under the new health care law, administration officials said Tuesday.

The move is an abrupt shift, coming just days after the new policy took effect on Jan. 1.

Many doctors and providers of hospice care had praised the regulation, which listed “advance care planning” as one of the services that could be offered in the “annual wellness visit” for Medicare beneficiaries.

While administration officials cited procedural reasons for changing the rule, it was clear that political concerns were also a factor. The renewed debate over advance care planning threatened to become a distraction to administration officials who were gearing up to defend the health law against attack by the new Republican majority in the House.

Although the health care bill signed into law in March did not mention end-of-life planning, the topic was included in a huge Medicare regulation setting payment rates for thousands of physician services. The final regulation was published in the Federal Register in late November. The proposed rule, published for public comment in July, did not include advance care planning.

An administration official, authorized by the White House to explain the mix-up, said Tuesday, “We realize that this should have been included in the proposed rule, so more people could have commented on it specifically.”

“We will amend the regulation to take out voluntary advance care planning,” the official said. “This should not affect beneficiaries’ ability to have these voluntary conversations with their doctors.”

The November regulation was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services and a longtime advocate for better end-of-life care. White House officials who work on health care apparently did not focus on the part of the rule that dealt with advance care planning.

The decision to drop the reference to end-of-life care upset some officials at the Department of Health and Human Services, who said the administration ought to promote discussions of such care. Such discussions help ensure that patients get the care they want, the officials said.

During debate on the legislation, Democrats dropped a somewhat similar proposal to encourage end-of-life planning after it touched off a political storm. Republicans said inaccurately that the House version of the bill allowed a government panel to make decisions about end-of-life care for people on Medicare.

Sarah Palin, the 2008 Republican vice-presidential candidate, said in the summer of 2009 that “Obama’s death panel” would decide who was worthy of health care. Representative John A. Boehner of Ohio, the House Republican leader who is to become speaker on Wednesday, said the provision could be a step “down a treacherous path toward government-encouraged euthanasia.”

The health care bill passed by the House in 2009 allowed Medicare to pay doctors for discussions of end-of-life care, including advance directives, in which patients can indicate whether they want to forgo or receive aggressive life-sustaining treatment.

The provision for advance care planning was not included in the final health care overhaul signed into law by President Obama. Health policy experts assumed that the proposal had been set aside — until a similar idea showed up in the final Medicare regulation in November.

Legislative Alert! Do You Have a Spouse on Medicaid? Oregon Law Now Requires You to Change Your Will

According to the State of Oregon, the average cost of long-term care is now $7,663 per month. Paying for this care for very long is beyond the means of most middle-class families. In an effort to obtain good care for an ill spouse and preserve enough assets for the healthy spouse to live independently, many people in this situation apply for assistance with care costs through the Medicaid program.

Once the Medicaid application is approved, most people neglect to consider a crucial question: What happens if the healthy spouse passes away before the ill spouse? While Medicaid allows an ill spouse to have only $2,000 in assets, a healthy spouse is permitted to maintain additional assets, as much as $109,560 plus the family home, for his or her support. What will happen to these assets if the healthy spouse dies first?

The answer depends on the will of the healthy spouse. Mostly, we see that the healthy spouse has made no change at all to an old will leaving all assets to the ill spouse. In that event, if the healthy spouse dies first, all assets pass to the ill spouse. This causes two problems. First, the ill spouse will immediately lose eligibility for Medicaid benefits. Second, due to illness, the ill spouse is usually unable to manage the inheritance. Sometimes the court has to appoint a conservator to manage the ill spouse’s inheritance and pay the bills. All of this results in large expenses for the ill spouse and extra hassle for loved ones.

Sometimes, the healthy spouse will go to the other extreme. Instead of leaving everything to the ill spouse, the healthy spouse signs a new will leaving nothing to the ill spouse. The problem with this is, under Oregon law, you cannot completely disinherit your spouse. An ill spouse has the right to receive a portion of the healthy spouse’s estate. If the ill spouse is on Medicaid, the State of Oregon will intervene in the healthy spouse’s estate, and the court will require that some of the healthy spouse’s estate be set aside for the ill spouse. As of January 1, 2011, that amount is being increased to one-third of the healthy spouse’s estate.

As a practical matter, this means that every healthy spouse who has an ill spouse receiving Medicaid benefits needs to update his or her will to comply with this change in Oregon law. At a minimum, one-third of the healthy spouse’s estate should be left in a support trust for the ill spouse. Remaining assets can be left in a special needs trust for the ill spouse (these funds will be protected from the Medicaid spend-down) or to other beneficiaries.

So, if you have a spouse in long-term care who now receives, or who may in the future receive Medicaid assistance, speak with an experienced elder law attorney to discuss bringing your will into compliance Oregon law. Prompt attention to this issue could save your family tens of thousands of dollars and avoid delays in Medicaid eligibility. Most importantly, updating your will helps to insure that the ill spouse will always receive good care and has the best possible quality of life.

End of life care, resuscitated (editorial from The Oregonian, 12/29/10)

After the 'death panel' furor, Obama quietly orders payments for advance care planning

Maybe now, in this lull between pitched political battles over health care reform, Americans will see clearly the wisdom of encouraging more conversations on end-of-life care. We sure hope so.

President Obama has authorized a new Medicare rule, effective Jan. 1, allowing payments to doctors for time spent discussing "voluntary advance care planning" with their patients. This is more or less the same policy that Rep. Earl Blumenauer, D-Ore., sought to include in the broad health reform bill, which opponents seized on and twisted into "death panels" and government-sponsored euthanasia

That was fear-mongering by people like former Alaska Gov. Sarah Palin and talk-show host Rush Limbaugh, who saw an opportunity to turn Americans against health care reform. But it did real damage to the long, difficult and important movement to get people to talk about, plan for and control the end of their lives.

Oregon is a pioneer in this effort, far ahead of most states in the field of advance directives and palliative care. Oregonians, for the most part, understand that end of life planning is about keeping control of choices about life-sustaining treatment where it belongs -- with the individual, not with the government, physicians or hospitals.

It was infuriating to see end-of-life care, including advance directives, warped into an argument against health care reform. Even House Republican Leader John Boehner of Ohio sought to whip up the hysteria, claiming: "This provision may start us down a treacherous path toward government-encouraged euthanasia if enacted into law."

That is flat-out untrue, as time and Obama's new Medicare rule will prove. There is nothing here to fear. Under health care reform, Medicare covers yearly physical exams, or wellness visits. The new rule allows physicians, as part of those annual visits, to discuss end-of-life treatment, including advance directives. That's all.

There are no government "panels," no power given to anyone else, no loss of control by patients. On the contrary, dying people with advance directives would retain far more control than they have now.

This simple truth has carried the day in the debate over end of life planning in Oregon. Ultimately it will everywhere else in this country, if leaders like Obama, Blumenauer and others continue to stand up to those who seek to twist the facts on advance directives.

A New York Times story on the new regulation reported that Blumenauer and others learned of the new policy in November, but urged other supporters to keep quiet about the change to avoid setting off another political backlash. Blumenauer's office said in an e-mail, "The longer this goes unnoticed, the better our chances of keeping it."

You can understand the concern, given the lies that were thrown around the proposal last year. But secrecy is the wrong strategy. Full sunlight, complete openness, ultimately will swing the debate over end of life care.

The debate will be won, as it has in Oregon, when Americans understand that it is about knowing their individual choices and asserting their control over their last days on earth.

Power of Attorney for Finances: An Essential Tool for Elder Care Planning

Most people understand the need to have a will, so that when they pass away, assets will go to their chosen beneficiaries. Most people do not realize that they also need to appoint a power of attorney to make financial decisions and manage assets for them, if they become incapacitated.

If you think about it, most any financial decision we make requires a signature. Selling a house, writing a check, entering into agreements, etc., all require that we be able to sign documents. A signature itself is not even enough; the law imposes a requirement that the person signing the document have sufficient mental capacity to understand what they are signing.

As we age, there is a greater possibility that a time will come when we are not able to sign important legal documents. Or, even if we can sign our name, we may not understand what we are signing. At that point, assets are frozen unless someone has been given the legal authority to make financial decisions for you. The best way to do this is through a power of attorney for finances.

A power of attorney for finances is a document you can sign to appoint another person to make important financial decisions for you in the event you become incapacitated. The person you appoint is called your “agent.” It is a good idea to name one or more alternate agents, in the event your first choice is unable or unwilling to serve in that role.

As an Elder Law attorney, one of the most common phone calls we receive is “I need to get power of attorney for my Mom.” My answer is always, “that’s great, we’d love to help your Mom. Let’s schedule a time for her to come in and discuss it.” “Well, that’s a problem,” replies the caller “because Mom has Alzheimer’s Disease, and she won’t understand what you are talking about.”

In this situation, it may be too late to get a power of attorney. A power of attorney must be signed by a person who is legally competent. This means the signer must have the ability to understand the nature and importance of the document. If someone already has Alzheimer’s Disease, or dementia, or has suffered a stroke, it may be too late to sign a power of attorney. Therefore, it is important to sign a power of attorney while a person has mental capacity to understand the document.

When deciding who should be your agent, remember that the most important qualities are honesty and good financial management skills. The main disadvantage to having a power of attorney is, a dishonest agent could use the power of attorney to misappropriate your assets. Therefore, only appoint the most trustworthy people to serve in this role. There are also professional trust companies that may agree to serve as your agent.

A power of attorney should always be prepared by an experienced elder law attorney. It is possible to obtain a generic power of attorney from a legal stationery store. However, this form will not give the agent the ability to make many types of important decisions for a disabled person. An experienced elder law attorney can provide a power of attorney that will give your agent flexibility to make important financial decisions if you are not able to make them yourself, such as disability planning, creating trusts, long-term care cost planning and tax planning.

A Mother’s Dilemma: Planning for the Special Needs Child

As an Elder Law attorney for over 15 years, I have worked with thousands of older people and their families. But some situations are especially memorable, and Elinor and Tommy’s is one of them.

When Elinor first came to see me, she told me that she and her husband had tried for some time to have a child, without success. They decided to adopt, and after a period of time, they were blessed to be able to adopt a healthy baby boy, whom they named Tommy. It seemed that their fondest wish had come true.

When Tommy reached age 3 months, Elinor took him to the doctor for a routine check-up. Tommy was pronounced to be in excellent health. He received the usual three-month immunizations, and went home.

A fever is always a source of worry and sleepless nights for a parent. Thankfully, in most cases they are not serious and do not last long. But Elinor’s worry turned to dread as Tommy’s fever soared, and he became listless. She took him to the hospital, where he was diagnosed with a brain infection, a very rare, but serious complication from the immunization. Tommy survived. But the doctors had grim news: baby Tommy’s ordeal had almost certainly left him with brain damage. This was in the early 1970’s, and the doctors had no way to estimate the degree of damage. They would just have to wait and see.

As it turned out, Tommy’s illness had left him mentally retarded. His adoptive parents vowed to give him the best care and quality of life. But they could not know the toll it would take on them, and on their marriage. They ultimately divorced, and the father passed out of Tommy’s life.

As Tommy became a young adult, he expressed a wish to live independently. In his early 20’s he moved into a group foster home. The problem was, the cost of the group home was more than the monthly income he received from the vaccine injury settlement. So Elinor began to withdraw her retirement savings to pay Tommy’s care bill. And she had come to see me, she said, because as of the next month’s payment, her retirement savings would be completely gone. She had spent it all trying to fulfill her promise of quality of life for her son.

The solution lay in a special needs trust for Tommy. His monthly income from the vaccine injury settlement went into the special needs trust. From there, it could be used to pay for goods and services that would improve his quality of life. Using the trust, we were able to get him qualified for Social Security benefits and Medicaid to help pay the adult foster home. We were even able to reimburse Mom for some of her retirement savings. Tommy lives with dignity and independence. Mom has peace of mind. And I have the satisfaction of knowing I made a difference.

Do you know someone with a special needs child? If so, please give him or her a copy of this article. When quality of life is everything, Special Needs Planning can make all the difference.

Elder Law is Special Needs Planning