Glossary

LibraryAlzheimer's and the Practice of Law: Counseling Clients with Dementia and Their Families (ABA) (2013 Ed.)

GLOSSARY

A

acute-care condition—a diagnosis that a person can get well from. Medicare generally covers acute-care conditions. The opposite of chronic care.

advance directives—written documents, such as the living will, power of attorney for health care, power of attorney for property, and the do not resuscitate order (DNR), that set forth health decisions to be made once people can no longer make these decisions for themselves.

Alzheimer's disease—a degenerative brain disease of undetermined cause that is the most common form of dementia, usually starting in late middle age or in old age, that results in memory loss, impaired thinking, disorientation, and changes in personality and mood. The Alzheimer's Association labels the disease as degenerative, progressive, and fatal.

Alzheimer's journey—individuals with Alzheimer's often progress through this trajectory:

• memory loss ignored
• memory loss masked/denied
• unsafe alone
• aid needed
• assisted living required
• nursing home required
• hospice care required/death

The family of a loved one with Alzheimer's often progresses through a complementary trajectory that may have some of these components:

• memory loss ignored
• memory loss masked/denied/facilitated
• memory loss assistance needed by loved one, but hidden from "outsiders"

arbitration clause—one of the methods used by nursing home lawyers to cut nursing home losses from litigation is to include binding arbitration clauses within the standard form contract. Nursing homes are raising arbitration clauses as a defense, even within the context of wrongful death actions and personal injury suits.

assisted-living facility—nursing home or other type of facility for people who cannot live alone because they have chronic-care conditions, such as Alzheimer's disease.

B

beneficiary—one for whose benefit a trust is created.

C

capacity—generally defined as the mental ability to perceive and appreciate relevant facts and make rational decisions.

capacity worksheet—a checklist of sorts aimed at helping lawyers assess their clients and determine whether or not the client has diminished capacity.

care managers—licensed clinical professionals, usually with advanced degrees, with extensive knowledge of health care, aging, and different issues that affect people with disabilities. They are often nurses, social workers, and licensed clinical counselors.

caregiver child—child taking care of a parent with diminished capacity.

charitable pooled trust or d4C trust—an irrevocable gift that provides both a lifetime income from premium investment options and an unprecedented charitable tax deduction.

chronic-care conditions—a condition, such as Alzheimer's disease, that is not going to improve. The opposite of acute care.

citations to discover assets—a broad, pre-complaint discovery tool designed to "level the playing field" for guardians and representatives of people who may not understand or be able to articulate what happened to their assets. This is a defense against financial exploitation. Citations to discover assets allow one to obtain discovery without having to file suit and without having to plead facts requisite to survive a motion to dismiss.

citations to recover assets—a procedural mechanism that is a defense against financial exploitation, but it does not typically create any substantive legal rights. One must plead cognizable legal theories such as incapacity or undue influence, coercion, and duress. Undue influence, coercion, and duress are very often pleaded in the alternative. Unlike citations to discover assets, citations to recover assets are subject to dispositive motions.

cognitive impairments—mental impairments associated with confusion, forgetfulness, and other memory issues.

colicky dementia—a form of dementia in which the individual is unpredictable, inconsolable, and has disproportionate behavior reactions to the reality of the individual's environment, inner health, and caretaking. The individual exhibits a chronic state of anxiety, panic, and circular thinking that lasts for periods exceeding three hours a day, more than three days a week, for more than three weeks.

community spouse—for purposes of this book, the term "community spouse" as defined by nursing home Medicaid regulations is a spouse that continues to live in a personal residence within the community while married to a person who has been institutionalized in a nursing home.

contractual capacity—level of capacity required for the execution of inter vivos trusts, deeds, and nondurable powers of attorney. Contractual capacity is defined as the ability to comprehend and understand the terms and effect of the contract.

countable assets—assets that count toward the state determined maximum for Medicaid purposes. These include bank accounts, certificates of deposits, money market accounts, stocks, mutual funds, bonds, retirement accounts, pensions, second cars, second or vacation homes, and any other items that can be valued and turned into cash.

custodial care—assistance with preparing meals, bathing, grooming, toileting, and other activities of normal daily life. Medicaid does not pay for custodial care.

D

d4A or self-settled trust—a special-needs trust funded with property belonging to the beneficiary and/or beneficiary's spouse, such as a direct inheritance, recovery in a personal injury lawsuit, or a gift.

d4B or Miller trust—a trust in which a person has assigned the right to receive social security and pension payments, in order to avoid having too much income to qualify for benefits like Medicaid.

d4C trust or charitable pooled trust—an irrevocable gift that provides both a lifetime income from premium investment options and an unprecedented charitable tax deduction.

dementia—a form of mental disorder resulting from degeneration of the brain. For purposes of this book, dementia includes degeneration of the brain caused by Alzheimer's disease, Parkinson's disease, and as many as 70 other causes. Dementia does not refer to traumatic brain injury.

death is imminent—in medical terms, an imminent death means a determination made by the attending physician according to accepted medical standards that death will occur in a relatively short period of time, even if life-sustaining treatment is initiated or continued. The "relatively short period of time" is defined as six months. One becomes qualified for hospice if death is imminent.

Dependency and Indemnity Compensation (DIC) Benefits—unmarried spouses, dependent children, and parents of veterans can all potentially be eligible for the wide variety of Veterans...

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