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At a recent care-giver education conference, sponsored by the Alzheimer’s Association, those in attendance were profoundly misinformed regarding Powers of Attorney and the legal authority of the Ombudsman by a person who is employed by a state-funded agency and has the title of ”Information and Assistance Specialist”.  If this were not enough, the so-called “specialist” also made patently incorrect statements that are contrary to the public policy of the state as announced by the Illinois legislature and interpreted by the courts of this state.

Life Care Planning, Estate Protection, Disability,
VA & Medicaid Assistance Lawyers

Beware Of Non-Lawyers

            The State Long-Term Care Ombudsman and regional Ombudsman Programs around the state serve a very important function.  They help make sure seniors who reside in nursing homes and other care facilities are well-cared for.

            The Ombudsman Programs also investigate allegations where seniors may have been the victims of abuse, neglect, financial exploitation, or self-neglect.

            In addition, where a complaint is made against a power-of-attorney agent, and the principal (the person who signed the power of attorney) is incapacitated as established by a court or a written report made by a physician, the Ombudsman may require the agent to produce a record of all receipts, disbursements, and significant action taken by the agent in his/her capacity as agent.

            Despite these very important functions, recent activities and statements made by some regional Ombudsman Programs give us reason to be concerned.  There is not enough room in this short article to detail all concerns, so we will high-light just one event.

            At a recent care-giver education conference, sponsored by the Alzheimer's Association, those in attendance were profoundly misinformed regarding Powers of Attorney and the legal authority of the Ombudsman by a person who is employed by a state-funded agency and has the title of "Information and Assistance Specialist".  If this were not enough, the so-called "specialist" also made patently incorrect statements that are contrary to the public policy of the state as announced by the Illinois legislature and interpreted by the courts of this state.

            The "specialist" incorrectly stated the Ombudsman has the right to "take seniors out of a nursing home and put them in their own homes -  even if it is only for two weeks."

            This statement was challenged by a few brave care-givers in attendance. They said, in effect, that if a senior's doctor and family felt the senior needed care in a safe place such as a nursing home, how could the Ombudsman come in and cause such havoc for the senior and the family?

            To this the "specialist" gave a response that was not only incorrect but actually contravened the public policy of this state.  She said that even if the family had a power of attorney, a power of attorney is not effective unless the elder has been "legally designated incompetent."  In other words, as she went on to say, the only way a power of attorney could become effective is for a court in a guardianship proceeding to declare the senior incompetent.

            As any reasonably well-informed person ought to know, the purpose of a power of attorney is to AVOID the need for a guardianship.  While the "specialist" might have intended to state that consistent with state statutes a power of attorney can be revoked at anytime by the principal prior to the principal becoming incapacitated, that is not what she stated.

            Indeed, the "specialist" eventually revealed her true colors when she stated the "Department's (on Aging) goal is to get seniors out of the nursing home when they say they want to go home."

            Reading between the lines, it appears that this could mean the state, through the Department on Aging and the local agencies it funds for the various Ombudsman programs around the state, may be attempting to balance the State's budget on the backs of frail elders who do not have the capacity to realize they are living where they need to be - because their doctor has said they need that level of care.

            Indeed, one older woman stated "My mother says that [she wants to go home] all the time. But we don't know what home she's talking about . . . her last one or the one where she lived when she was a girl!"

            With the forgoing as background, we need to restate for all who read this article that the Ombudsman Programs are beneficial and very much needed in some situations.  For example, an Ombudsman would have the legal authority to intervene in a situation where the elder is living in a dangerous situation.

            However, all social workers and others who may tilt in favor of a patient's "right of self-determination" in derogation of this state's public policy, need to understand that an Ombudsman has NO authority other than that granted under the enabling statutesSee 20 Illinois Compiled Statutes 105/1 et seq § 4.04; 755 ILCS 45/2-7.5; 320 ILCS 42/5; 210 ILCS 9/80 et seq; 320 ILCS 20/1 et seq.

            If there is any substance to this author's concerns, as I truly believe there is, then the need for the elderly and their families to have knowledgeable guidance from legal, medical and social work professionals who will advocate for the elder person and his or her very best care is more important now, today, than it was just a few months ago.

            As one ages and the need for assistance increases, the need to have someone in your corner - someone who will speak up for you, protect you, and advocate for you  -  becomes extremely important.  As governmental financial support for the costs of long-term care decrease and the resulting strains on the budgets of families as well as the facilities and agencies who provide care for the elderly increase, the need for strong and unwavering advocacy by a professional on your behalf becomes ever more crucial to maintaining your independence, dignity and quality of life.

            Richard Habiger is an elder care attorney, who focuses on Medicaid and VA benefits, Alzheimer's and life care planning.  You may contact him at 618-549-4529 or Richard@HabigerElderLaw.com.

 

 


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Toll Free: 800-336-4529

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Phone: (618) 985-4529