What is the Difference Between Power of Attorney and Guardianship? Maryland Edition

Clients often come to me wanting to get "Power of Attorney" to protect a loved one's finances or health, or both.  If the loved one is mentally incapacitated, however, a "Power of Attorney" is not valid.  A Power of Attorney is a document that the loved one must sign voluntarily, knowing/understanding what power she is giving away to the Agent (the person protecting her financial and/or medical affairs). A loved one cannot execute a valid Power of Attorney if she is mentally incapacitated and doesn't understand what she is signing!

So how can we protect her interests? In Maryland, a Guardianship Petition will likely be filed under these circumstances. A Guardianship Petition must be filed in the Circuit Court, and a Circuit Court Judge will decide if a Guardian will be appointed for the alleged disabled person. The Guardian can be appointed to manage the loved one's financial affairs (Guardian of the Property), personal, including medical, affairs (Guardian of the Person), or both. This process is very complicated, time-consuming, and expensive. But protections must be in place so that people are not taken advantage of. Imagine if someone tried to gain access to your financial and medical details! You would want protection from the law. 

The difference between Power of Attorney and Guardianship is essentially that Power of Attorney is relatively easy to get as long as the loved one knows what she is giving away. Guardianship is the last resort for loved ones who are mentally incapacitated (from a disease like Alzheimer's, for example).

Presentation on Guardianship in Sudlersville, Maryland on Senior Law Day 2017

Emmett and Yvette after the Senior Law Day presentation on Guardianships in Sudlersville, Maryland - May 1, 2017

By Emmett B. Irwin

I had the pleasure of speaking to Seniors in Sudlersville, Maryland on May 1, 2017 about Guardianship law and alternatives to Guardianship. Thanks to the Maryland State Bar Association and Mid-Shore Pro Bono for putting together this wonderful program.

1.       What is Guardianship? – Guardianship in Maryland is court-ordered control of an adult disabled person’s financial affairs, personal affairs or both.  A court-appointed Guardian of the Property will control an incapacitated person’s (“the ward”) financial affairs for the ward’s benefit. A court-appointed Guardian of the Person will control the ward’s personal care, most often decisions over medical care.

 

2.       How do I prepare for a Guardianship? – A Guardianship Petition must be filed where the Alleged Disabled Person (“ADP”) resides or the county of the medical facility where the ADP is currently housed (he/she is not called “the ward” until the Petition is approved).  Two certificates completed by medical providers must be filed with the Petition.  You don’t need to hire a lawyer to do the Petition, but you don’t need to hire a doctor to remove your appendix either.  The Guardianship Petition is extremely complex, as is the law surrounding it, so if you don’t get a lawyer you may just make a mistake that is irreversible. However, attorneys are expensive – you’ve been warned.

 

3.       Guardianship alternatives – Often a Guardianship can be avoided by getting a Financial Power of Attorney, a Healthcare Power of Attorney, or both.  A Financial POA acts almost exactly like a Guardian of Property and a Healthcare POA acts almost exactly like a Guardian of the Person.

 

Disclaimer: this Blog post is an extreme simplification of the law and is meant for general information purposes, it is not legal advice. Everyone’s situation is different, if in doubt get legal counsel.

Did I get a good Judge for my Baltimore Social Security Disability/SSI Hearing?

Here are the most current decision rates for the Baltimore Administrative Law Judges who do Social Security Disability/SSI Hearings:

                                                             Total                 Decided Approved Denied

Ball, Gary                                            62                         39           18          21          

Carlos, Tierney                                   85                          59           28           31          

Cheney, Clark S                                  13                           8              2             6             

Clark, W.                                               14                           4              1              3             

Edwards, Donna M                            58                           41           29           12          

Farnes, Milagros                                39                           24           15           9             

Forrest-Doyle, Mary                          45                           36           23           13          

Harris, L.                                              36                           18           6              12          

Kotval, Raghav                                   61                           42           30           12          

Kuperman, Frances P                      33                           20           14           6             

Neely, Donald K                                68                           52           35           17          

Olmscheid, Melvin G                       52                           35           24           11          

Ortis, Jesus                                        61                           41           34           7             

Self, Leisha                                         41                           22           20           2             

Ulan, Janice                                        31                           21           15           6             

Young, Robert W                             51                           51           22           29          

Alston, Sara L                                    20                           10           9              1             

Chin, Stanley K                                  76                           57           44           13          

Diamond, Yvette N                          78                           62           38           24          

Grunberg, Hope G                           24                           18           7              11          

Kopicki, Michael J                             58                           43           24           19          

Levey, Lawrence                             54                           36           23           13          

McHenry III, James R                      59                           59           14           45          

Pang, David S                                    68                          54           34           20          

Penn, Laureen                                   67                           53           18           35          

Scully-Hayes, Kathleen                   35                           10           8              2             

Suris-Fernandez, Ramon                83                           55           44           11          

 

Woode, Charles                                56                           49           19           30         

Social Security really screwed up the increase in benefits for 2017!

Yesterday Social Security announced the Cost of Living Adjustment (COLA) for 2017 here and it's a doozy! Despite Seniors and Disabled people paying significantly more for health care, rent and food these days, Social Security is only increasing Retirement, Disability and Supplemental Security Income (SSI) benefits by 0.3% in 2017.  For someone getting $1000 per month in benefits, they will get a whopping $3 raise in 2017. What?!? Meanwhile, Social Security is collecting more money from working people, raising the maximum amount of earnings subject to payroll tax from $118,500 per year to $127,200 per year. That's a more than 7% increase. So the government is taking 7% more from us and paying out 0.3% more. I don't pretend to know the accounting vagaries of the Social Security Administration, but even I know that there is something seriously wrong here. To paraphrase the words of Forrest Gump, I'm not a smart man, but I know what getting swindled is. 

One of the major reasons for the very low COLA next year is the erroneous way Social Security defines inflation. The general rule is that Social Security Retirement, Disability and SSI benefits are inflation proof. In other words, if inflation increases then benefits increase an equal amount. Great, right? No so fast, the devil is in the details. Congress has decided that inflation for COLA will be based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), which includes gasoline prices. The CPI-W as a whole reflects prices paid by working people. The problem? Seniors and Disabled people do not have the same costs as working people! If gasoline prices are lower, for example, Seniors and Disabled people will not save as much money as working people who commute every day. So in the last few years, there has been little to no increase in benefits paid by the SSA partly because gas prices are so low. But the people getting the benefits are paying more for everything else! As usual, the little people are getting swindled in the numbers game.

When I apply for Social Security Disability/SSI, who is responsible for getting medical records to prove that I'm disabled?

The general rule is that you are ultimately responsible for getting medical records and filling out forms to support your Social Security Disability/SSI application. This is a very harsh rule and can result in unjust situations where Social Security makes incorrect decisions.  

FORMS

After filing a Social Security Disability/SSI application, Social Security will send an Adult Function Report, a Work History Report, and perhaps other forms based on the claimant's alleged disability (for example, Asthma Report, Adult Pain Report, etc.).  Often Social Security caseworkers will gladly deny a case for lack of a form, despite the claimant being clearly disabled.  For example, I once had a client who had a stroke and was confined to a nursing home.  Social Security sent her a form to fill out multiple times when it was clear from her application that she could no longer read or write because of the stroke.  They should have sent the form to her representative (me), or found her disabled without the form being completed, because she was totally incapacitated by the stroke.  However, the caseworker chose to use the form as an excuse to deny her case.  Luckily my client was approved at an appeal level.  Moral of the story: fill out all of the forms and send them back! No matter how silly the form is, if you don't send it back Social Security will use that against you.

MEDICAL RECORDS

A claimant is responsible for furnishing medical records associated with his/her case. What?!? This is impossible for some people and disproportionately hurts the poor.  Medical records can be very expensive, and some doctors won't release them to a patient.  The good news is that Social Security will request the records on your behalf and pay for them.  But don't be fooled!  Social Security will send one request at the initial application stage, and a second request at the reconsideration stage (if your state has a reconsideration stage), but generally does not follow up on those requests.  If the medical provider doesn't send the records, Social Security will not punish the medical provider, it will punish you by denying your claim. 

At the hearing level, enforcement of the medical record rule becomes even harsher.  Social Security will not request your medical records at all.  You are responsible for getting them.  The one way of getting out of this responsibility is to request a subpoena from the Administrative Law Judge to the medical provider.  Some medical providers will not respond to the subpoena, however, and the Judge may make a decision with the medical records he/she already has.  The good news is that most claimants have an attorney at the hearing stage, and most attorneys will request the medical records and pay for them (if the cost is not too high).  

Disclaimer: This article is meant for general information only and is not intended as legal advice. Every case is different, consult an attorney if you're not sure.

If I go into a nursing home will the government get my Social Security check?

Like the answer to so many legal questions, the answer to this question depends on your specific circumstances.  If you receive Supplemental Security Income (SSI) over $30 per month (at the time of this writing) then the answer is yes, the Social Security Administration (SSA) will lower your SSI payment to $30 per month.  Social Security Disability Insurance (SSDI), or Social Security Retirement, however, should never be lowered in this fashion.  As long as Medicare or some other insurer is paying your nursing home bill you are entitled to your SSDI/SS Retirement check. The same goes for the unfortunate situation in which you are paying your own nursing home bills.

In Maryland, if Medicaid starts paying your nursing home bill, however, you will start to be responsible for a "cost of care." Your "cost of care" is most of your income if you're single but not paid to the government. You owe that money to the nursing home, and for-profit nursing homes are generally very aggressive in relation to collecting "cost of care." You should not lose your Medicaid if you don't pay "cost of care" but the nursing home bill office will be not-so-happy campers. The nursing home may try to kick you out of the facility by bullying you/your family or even try to get you evicted!

On the other hand, in a situation where you are on Medicaid and have a spouse in the community, there is a spousal allowance if your spouse is dependent on your income to pay living expenses. The "cost of care" is reduced and the Medicaid payment is increased to account for those living expenses.  But a spouse with a large income will not be entitled to a spousal allowance. 

Disclaimer: This post is for informational purposes only and not intended to be legal advice.

I can't afford to pay a lawyer for my Social Security Disability/SSI case, how do I get help?

You're in luck, you don't have to pay any money up front!  Many lawyers, like me, give free consultations regarding Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI).  In fact, if you called me at 443-447-7493 right now there is a good chance we could talk about your case FOR FREE.  Then, if I decide that I can help you with your case, and you decide that you want me to be your lawyer, you pay NOTHING up front.

How is that possible, you may ask? The Social Security Administration (SSA) set rules that would allow disabled people to get lawyers at low cost. SSA will generally not allow lawyers to charge up front fees for representing a claimant before the SSA.  Also, SSA will generally not allow lawyers to charge more than 25% of past due benefits, and will generally not allow a fee of over $6,000 for a single claim. What are past due benefits? Past due benefits are funds awarded retroactively for the time period between when you became disabled and when your application for benefits was approved. There is a 5 month waiting period for SSDI payments counted from the date you became disabled, and you may only receive 12 months of SSDI benefits prior to the SSDI application date. You may only receive SSI payments beginning the month after you apply for SSI.

Tip: You only pay if you win! Hiring an attorney to help you is smart and low-risk.

Example: Mary became disabled in January 2013 and applied for SSDI in January 2015. Mary hires a lawyer to help her but does not pay anything up front.  The SSA awards her claim on July 1, 2015 and establishes a disability onset date (the date Mary became disabled) as January 1, 2013.  Mary's Primary Insurance Amount (PIA) is $2,000 per month, meaning she is eligible for an SSDI payment of $2,000 per month.  She is awarded $2,000 per month of past due benefits beginning in January 2014, even though she was deemed to be disabled in January 2013, because SSA will only pay 12 months of benefits before Mary's SSDI application which was filed in January 2015. Mary gets 18 months of past due benefits totaling $36,000. 25% of 36,000 is 9,000, but Mary only has to pay her lawyer $6,000 because of the SSA limit on fees.

Disclaimer: This post is for informational purposes only and is not intended as legal advice. Emmett B. Irwin is not your attorney before the SSA until you sign a fee agreement.