If a loved one is experiencing memory loss or suddenly making poor decisions, you may want the court to appoint a guardian, which requires a declaration of incompetence. Determining whether someone is incompetent to make their own decisions is a complicated process.
If a loved one is unable to make decisions for him or herself, the court may appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. A guardian is only appointed as a last resort if less restrictive alternatives, such as a power of attorney, are not in place or are not working.
The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions or decisions that are in their best interests.
The court usually looks at a number of factors in determining the need for a guardian or conservator, including the following:
Comprehension of important medical or financial information
Appreciation of the importance of medical and financial decisions and understanding the effect of those decisions
Ability to make reasonable decisions using the information available
Capacity to communicate decisions in a consistent manner
Ability to maintain a safe environment
A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
Keep in mind that the standard for whether someone is legally incompetent to care for themselves is not always the same as whether they have the capacity to make legal decisions. Proper execution of a legal instrument requires that the person signing have sufficient mental “capacity” to understand the implications of the document.
Vaccines can become less effective over time. Even individuals fully vaccinated as children may need to update their immunizations. Medicare Parts B and D offer vaccination coverage.
Medicare Part B covers shots for the flu, hepatitis B, pneumococcal (pneumonia), and COVID-19. Medicare covers 100 percent of the cost of these vaccines if you go to an approved provider, and you do not have to pay a deductible or coinsurance. Medicare Advantage plans are also required to provide these vaccines at no additional costs.
Medicare covers one flu shot per flu season, which runs from November to April, and not the calendar year. For example, if an individual gets a flu shot in January and again in November of the same year, Medicare would pay for both.
Medicare covers two different pneumonia shots. Medicare recipients can get the first shot at any time and it will cover the second shot if it's administered at least one year after the first shot.
Hepatitis B shots are free for anyone considered medium or high risk for contracting the virus. End-stage renal disease and diabetes are two conditions that place individuals into a higher risk category. A medical professional can help determine an individual’s risk level.
Medicare Part D plans (as well as Medicare Advantage plans with built-in Part D) should cover all other commercially available vaccines, including shingles and Tdap (tetanus, diphtheria, and pertussis), when they are reasonable and necessary to prevent illness. Contact your Part D plan to make sure it covers the shot you need. To limit your copay, you should go through an in-network provider that will either handle billing your Part D plan electronically or coordinate this with a pharmacy.
Ask your vaccine provider if it can bill your Part D plan directly. If your doctor or pharmacy can’t do this, the provider will have to bill you for the entire cost of the vaccination and you’ll have to request reimbursement from your plan. And note that the plan will reimburse for only the approved amount, which may be less than what the provider charged you.
Keeping current on your vaccinations is one of the best ways to prevent serious illness and disease. Talk with your doctor to determine what vaccines you need to minimize risks to your health.
For more from the Medicare Rights Center on Medicare’s vaccination coverage, click here.
Overwhelmed by the stress of long hours, low pay and exposure to the COVID-19 virus, nursing home workers are quitting in record numbers. The labor hemorrhage has turned what was already a chronic staffing problem into a full-blown crisis in many facilities and entire states as understaffed nursing homes struggle to care for patients, accommodate family visitation, and admit new patients waiting in hospitals to be discharged.
The crunch has even forced some states – including New York, New Jersey, Minnesota, Maine, New Hampshire and Indiana — to deploy the National Guard to empty bedpans, give baths and distribute meals.
“It’s beyond a crisis,” Katie Smith Sloan, the president of LeadingAge, an association of nonprofit long-term care facilities, told The New York Times. “For many providers across the country, it’s a collapse.”
‘No One Would Come’
According to the U.S. Bureau of Labor Statistics, 425,000 employees, many of them of them nursing assistants, have left the nursing home workforce since February 2020. Certified Nursing Assistants (CNA), provide 80 to 90 percent of direct care for long-term care patients and make up 40 percent of nursing home employees.
In a June 2021 survey by the American Health Care Association and the National Center for Assisted Living, 94 percent of nursing home providers reported a shortage of staff, and 58 percent were limiting admissions because of the shortages.
With fewer nursing assistants working in short-staffed facilities, residents don’t get as much one-on-one interaction with their caregivers as they need, don’t get as many showers, and don’t get turned as often in bed to prevent bedsores from developing.
One North Carolina woman witnessed it first-hand with her 74-year-old mother, according to an Associated Press report. When visitors weren’t allowed inside the nursing home, she saw through her mother’s window that sometimes she sat for hours in a soiled diaper, with matted hair and a bedsore the size of a fist. Unable to use a phone by herself, the mother would cry for assistance.
“She would call out for help and no one would come,” her daughter said. “There was no one around.”
Meanwhile, although nursing homes contain less than one-half of 1 percent of the U.S, population, they account for 2 percent of the COVID-19 cases and 25 percent of the deaths, according to a report by the advocacy group U.S. PIRG.
Admissions Backlog Hurting Hospitals
Faced with the loss of employees during the pandemic and the difficulty in recruiting replacements in a competitive market economy, nursing home administrators have been forced to limit new admissions and close off whole floors in their facilities.
This has caused hospitals to keep patients longer who are waiting to be discharged to long-term care after surgery or illnesses and has resulted in fewer beds being available for COVID-19 cases flooding hospital emergency rooms.
While the pandemic has made the staffing crisis in nursing homes more acute, the problem isn’t a new one. It’s a systemic failure in the nursing home industry that’s been neglected for years, according to long-term care experts.
Nursing home workers are among the lowest paid employees in the U.S. economy, earning near-poverty wages, the Paraprofessional Healthcare Institute reported in 2016. With a median salary of $19,000 a year, more than a third of nursing home workers relied on public benefits like food stamps, housing subsidies and cash assistance. Given the low wages, long hours and stressful work, keeping and recruiting nursing home workers when other jobs are available and less demanding is a challenge. Before the pandemic, CNAs in nursing homes had an average annual turnover rate of 129 percent, according to the journal Health Affairs, with some facilities reaching a 300 percent replacement rate. (Consumers can now find out a nursing home's turnover rate.)
Nursing home owners are aware of the problem but claim that they can’t raise wages for workers due to the funding that’s available to them. While some long-term care patients pay their own way, most nursing home funding comes from Medicare and Medicaid. Medicare reimburses facilities for short-stay patients coming from hospitals for rehabilitative services, while Medicaid’s reimbursements are determined by the states, and the program pays for the majority of long-stay patients in nursing home populations.
On average, Medicaid pays half as much per day for long-term care as does Medicare ($206 v. $503), according to a 2018 analysis by the non-profit National Investment Center for Seniors Housing & Care.
“Everyone knows that Medicaid underpays,” David Gifford, chief medical officer for the American Health Care Association (AHCA), which represents assisted living and long-term care facilities, told CNN. “Salaries are about 70 percent of our revenue overall and so we just can't offer competitive salaries compared to hospitals and other settings.”
Some nursing home providers as well as federal, state and local governments are taking steps to address the staffing crisis. An October 2020 U.S. Department of Health and Human Services report found that increased wages and augmented benefits like child care, transportation, housing and food support, were being offered to retain staff in some facilities and localities. Hard-hit Minnesota recently announced a plan to train 1,000 new CNAs.
Meanwhile, the Biden Administration’s Build Back Better plan would provide funding for higher wages, tuition assistance and other incentives for nursing homes to attract qualified staff, and would help reduce waiting lists for Medicaid-funded alternatives to nursing home care by giving state home and community-based service (HCBS) programs an additional $150 billion over 10 years. The proposal would also make permanent a program called Money Follows the Person to help nursing homes return younger residents and some older adults to their homes.
For more on the rights of nursing home residents, click here.