The Great American Senior Show

From Probates and Trusts to Guardianships and Adoption with Elder Law Attorney Portia B Scott

June 15, 2022 Sam Yates Season 2 Episode 59
The Great American Senior Show
From Probates and Trusts to Guardianships and Adoption with Elder Law Attorney Portia B Scott
Show Notes Transcript

She started her practice with her father, William R. Scott, an attorney in Stuart, Florida since 1949. Today, much of her practice in Elder Law can be tracked to how Portia B Scott learned the intricacies of caring for the legal needs of seniors based on her own personal experience with her family.

Portia B Scott, J.D., L.L.M., of Portia B Scott Chartered, Elder Law, one of the leading Elder Law Attorneys in Florida joins the Great American Senior Show's grey-haired host Sam Yates in exploring some of the most important details of Elder Law. 

Sam Yates:

Hello, everyone, and welcome to another exciting edition of The Great American Senior Show. I'm your grey haired host, Sam Yates, and I'm back in Stuart, Florida today, Portia B. Scott. She is here with us as she promised that she would be. Elder Law is her specialty. And that's certainly what we are talking about today. And I think that you're special because you also do some other things that I want to get into most notably adoptions. But before we get into adoptions, let's talk a little bit about something that I only have heard recently. And that is Elder Law Mediation, we have other topics, but what is Elder Law Mediation? Well,

Portia Scott:

hello, Sam. And thanks for having me again, I see that you got a haircut since the last time we met. Absolutely. It looks great. Thank you. Okay, so Elder Law Mediation? Well, first off mediation in general is a process by which people resolve their distance differences, they, you can have it before you file a lawsuit, you can have it you know, me and my neighbor just can't seem to figure out how we're going to work this fence issue we have in the backyard, or it can be multi gazillion dollar lawsuit between a railroad and a union. Mediation has a place in many, many parts of our, our systems. Now, the beauty about mediation is that the people who are sitting at the table are the people who have an interest in what happens, if you go in front of a judge, the judge basically gets to make balls and strikes calls, that's what they do. They say, you're right, you're wrong. That's the limitation. Mediation opens up an entire world of possibilities, especially when you have people that are otherwise friendly towards one another, and they've had a dispute pop up, you can save the relationship. And as you might imagine, with the elderly, this usually involves family members, it becomes vitally important that everybody be on the same page in taking care of whatever the issue is, that has come up with the elderly loved one. It's a wonderful process. It comes you can't there's something certain things you cannot mediate, you cannot mediate whether someone has a capacity to make decisions or not. That is something that is very, very fact based. But once you have a determination that, you know, Grandma really doesn't understand the dangers of running the pool pump 24 hours a day and setting the house on fire, then you are able to as a group come together with a mediator who is a neutral, non interested party, they're not an advocate, they're totally trained exclusively in helping people get to their own solutions. Now they can come up with ideas about how to get to the goals, but the goals are determined by the parties themselves. And there is no authority telling them they have to agree to one thing or another. So Elder Law, mediation is actually something that's relatively new. As far as the training goes. We have lots and lots of wonderful, certified by the united by the Florida Supreme Court, mediators in our area. And if they have had the elder law, mediation training, it's not yet its own classification, but it is a training that's offered. They come in with an insight and a battery of possible solutions, which the parties themselves may be too immersed in the moment to be able to recognize independently. So I'm a big fan, big fan of mediation, big fan of the idea of Elder Law Mediation, often the people who handle the mediation and the elder law training, have been family law mediators, accustomed to dealing with custody of children and child support and divorcing families not completely unsimilar to fighting over who's going to get to take care of Dad.

Sam Yates:

As we're talking about mediation, I can I can imagine one of the areas that might come up for mediation would be proxy versus healthcare surrogate. Is that something that's confusing and could be a point of mediation?

Portia Scott:

Well, certainly, it's it's an explanation, and that's something that a lot of people don't understand. In Florida, we have very specific differences between appointing someone as your healthcare surrogate versus someone as your health care proxy. You really should have both. So a health care surrogate is someone that you appoint before you need them to make non emergency health care's decisions for you in the event that you're unable to make them for yourself. The same holds true for a health care proxy. Again, you're unable to make non emergency health care decisions for yourself. So you're unable because you're mentally incapacitated, you're in a coma, you're on the operating table, and you're under a twilight sleep procedure. And you can't make the decision on your own. And it's not an emergency, if it's an emergency, you don't need anybody, medical people don't need anybody's permission, they deal with emergencies as what EMTs they don't, they don't go to a car wreck scene and say, Hey, this person's got internal bleeding, who can give me permission to stabilize their condition, don't need it. That's what they're for. It's the other type of medical care that might be required. For instance, my father's father, when he was 97, and a half, I think, was diagnosed with an aggressive skin cancer. And they had to ask my father, who was his health care proxy, which is different from the health care surrogate, whether they should have the surgery or not. And the question came down to well, if you're going to put him out for it, I don't see any reason to do that. If you're not going to take him out pay, if it's something that can be done with a local, then go ahead. So they took it off with a logo, that was fine. But that's the kind of non emergency healthcare decision that needed to be made. And my grandfather at the time, of course, was not able to make his own decisions. So the difference between a proxy and a surrogate, a surrogate is charged with making decisions for you, according to what the person believes your wishes would be, you know, I will never want for instance, chemotherapy, don't ever let me have chemotherapy. Whereas a proxy is charged with making the decision as what's in the best interest of the patient. So one is you're suspending your own judgment, in favor of the person what you think they would have wanted, if they were able to make the decision, that's the surrogate. And the other is you're making the decision, regardless of what they want, in what's their best interest. So for instance, if you have someone who has never been a fully capacitated, adult, and they're making they they want candy for dinner, you know, that's just what they want. Under those circumstances, when they may not want to get a tooth extracted? Well, it's in their best interest. So they would have a proxy. Or they would have the functional equivalent to a proxy. Very few people want a proxy, most people want a health care surrogate who would make where you're empowering someone to make decisions like you would have

Sam Yates:

is like, we're like a pre need declaration comes into effect. Also,

Portia Scott:

that is one of the pre need declarations, that is they can be effective immediately. So they're just barely pre need like before I signed to this, that much pre need. Another pre need declaration that we have is a pre need determination of who should be my guardian if I have to have a guardian. And of course, there's the power of attorney, which must take effect immediately. So it's it's effective immediately. But what you do is you keep it in the bottom right hand desk drawer. And when you need it, you tell the person that's where it is, and they can go use it.

Sam Yates:

Because I have seen indirectly where the power of attorney is something someone thinks that that's all they need when it comes to some of the financial matters for a person, especially after they have passed and what how does that all equate offshore

Portia Scott:

banks, the power of attorney duplicates, in another person, whatever financial authority you have, as limited or as narrow as you want. You can do a power of attorney that says absolutely anything I own in my own name or jointly with another person, I'm giving you full authority to do it. Or you can have it as strict as possible. As I authorize you to write one check on my one checking account for my power bill while I'm in China, you can make it as grand or as limited as you want. So the problem with the duplication is it's not really a problem. It's just a fact of the duplication is that when I'm dead, I can't do anything. So the fact that I duplicated my authority to you means you can't do anything either. So the long and short of that is a power of attorney dies with the person who gave it to who signed it. So powers of attorney are only good during the lifetime Unless they're revoked, of course, but they're only good during the lifetime of the person who granted it. A lot of people try to use powers of attorney after someone's past and actually do from time to time, which opens up a boatload of liability if a mistake was made.

Sam Yates:

And that's how that was explained to me recently, in a case where someone went to a bank, and the bank did not really pay attention and use that power of attorney was used for some financial transactions. And then it was later said, Well, you should have done that. And it created problems for everyone offshore,

Portia Scott:

even with the best of intentions.

Sam Yates:

What about living wills? How does? How did they fit in that equation?

Portia Scott:

Living wills, this is this is the most problematic conversation I ever have with a client is when we contemplate all kinds of absolutely horrible scenarios in which they may find themselves. In fact, we always meet with people and explain what the living will is all about, and what the decisions are you're making, and then they make the decisions. And then they come back and they execute the documents. And we start with the execution of that document so that by the time we get to their actual will, they get to say something along the lines of oh, thank goodness, now I can just die. I don't have to go through those concepts of suffering. So living well makes the determination again, before you're in a desperate circumstance in your life. While you're cool headed, you're making your decision about what kind of treatments you would want under a variety of horrible scenarios. For instance, you've got a terminal disease, you're in a persistent vegetative state, you don't recognize people, you can't communicate effectively. You can't do any of the things that you're wanting to do. You're in hospice care, not hospice, but you're in end of life care. And then on top of all of that, you have a heart attack, do you want to be resuscitated? Wouldn't it just going to bring you back to your state of dying? Now, nobody wants to think about those things. And yet, if you don't specifically say do not resuscitate me, do not hook me up to a ventilator, do not put me on dialysis, if it's not going to fix what's going on, then the health care providers are required

Sam Yates:

to toss one out that I actually had the occasion to come into contact with a person passed away. And as part of their last wishes, they wanted their dog but down. Oh, and it is something that a lot of people don't think about. But when it came time to find the dog, the dog had disappeared. So recommendations there on pets. Don't do

Portia Scott:

it. Those of you who can't see me, I am glaring at Mr. Yates. No, you know, I'm a huge fan of pets. I think that's adds so much to our lives, and make our life so enriched, even the terrible ones that chew up your remote controls there. I find it heartbreaking that people are of such a mindset that they believe that I don't know if they believe that the animal would be better off because no one will ever love them as much as the owner does or what.

Sam Yates:

Yeah, that was a tough question. And I bring that up because it is something that here in our area, we have no kill shelters, and it's a little bit off the topic. But if you have something that you really don't like your dog or your cat or whatever, take him to a no kill shelter, but that that scenario actually happened. And it created quite a bit of heartache for the remaining members of the family.

Portia Scott:

I love the idea that someone grabbed the dog and just rescued, rescued.

Sam Yates:

And we cannot say who it was because I don't know who that was. But the dog lived happily ever

Portia Scott:

after. At a farm in upstate New York,

Sam Yates:

upstate New York. What are the things that also is near and dear to you? adoptions?

Portia Scott:

Yeah, yeah. adoptions never come about because everything's rosy. Right adoptions are the best possible end to a very sad story. Someone is eligible to be adopted children are eligible to be adopted if their parents are dead, if their parents have proven themselves incapable of providing the food, clothing, shelter, loved safety that a child deserves adoptions come about because of tragedy. It Never because everything was just great and the chill child is up for adoption. However, the positive side of that is that someone who really wants a child, especially that particular child, has an opportunity to enrich their own lies, and beyond anything else, help that child with the recovery that comes about and is available to them. Coming out of this tragedy, and I'm telling you I have done oodles of adoptions. That's a technical legal number but and it's the best day everybody leaves the courthouse happy, the child is happy if they're present, which they almost always are. The parents or parents are happy, the judge is happy, the clerk of court is happy, the bailiff is smiling. Everybody leaves the courtroom happy that day. Because what we do is we create a this is I stole this from Judge Steve Levin, is that we create a legal relationship where an emotional and spiritual one already existed.

Sam Yates:

That's a great way of describing that I'm going to use that myself. So judge, if you listen to this program, and you hear it, it's not plagiarism at all. It's just creative use of someone else's words and a different scenario. It's an homage and Omar. totally right. That's right. That's exactly right. And that leads into an area also that I recently experienced, and folks are like, wow, you run into a lot of things I do. I travel all over the country all over the state, looking into things, all things for senior citizens. And this one was of a special needs child who was growing into adulthood, and the parents were both aging brings us to the topic of a special needs trust.

Portia Scott:

Sure, sure. So special needs trust is a very spot a specialized hence the name, a very specialized form of trust. And as we said, there's a recap. A trust is an instrument that creates legal obligations and duties on the trustee, and takes ownership of something in this case, we'll use cash, takes ownership of cash and divides it in half, half of it is the legal owner, that is the trustee. They're the person who has the authority to do what needs to be done. And everyone will say, yes, you're the owner, you can write that check, you can purchase that goods. And the other is the what's called equitable, which is concept of fairness, ownership interest, which goes to the beneficiary. So I may own a bunch of I might have $100,000, in an account that of which I am the legal owner, I'm the trustee. But 100% of that money is has got to be used for my disabled child, that child is the beneficiary. Now a special needs trust has many qualifications, many requirements, the federal government, as well as the state government has a voice in what we have to include. It's very, very specific and one error can cost you the entire document being found to be invalid. But the idea behind it is that if someone is on benefits, say for instance, they are getting Medicaid that covers surgeries that they must have from often, then, if I have $100,000, and I want to make my child's life better, but I don't want it all to be spent for these surgeries and leave me with nothing for betterment of the child, I can create what's called a special needs trust. And in that trust, I put $100,000 It's an irrevocable trust, which means I can't change my mind later. And it's got to go for the use of my beneficiary it's got, again, to make their life better. It can be to purchase something that benefits that the government provides would not cover let's say for instance, my child's confined to a wheelchair, and the wheelchair they have doesn't have the proper brakes that I need. I can get a better wheelchair for my child. I can buy a van that will have one of those lists that can put the wheelchair in and out to help facilitate my child's going to the doctor's. There are a lot of things that can be used for special needs trust that enhance the child's life and do not take anything away from the taxpayers for instance, which I know is always a concern.

Sam Yates:

Portia I want to thank you very much for being on our program. And I asked in the first episode if you would come back I'm also going to ask now because in the field of Elder Law laws change people's needs change situations and circumstances change. And additional questions come up. Would you come back at some point in the future and grace us?

Portia Scott:

Well, I don't know about if I'm going to be gracing you. But Sam, it's always a pleasure to see you and yes, I'd be happy to.

Sam Yates:

Awesome. Porsche, thank you for being here. We look forward to having you back in the future. And until that time, and until our next episode of The Great American Senior Show. I'm your gray haired host, Sam Yates. And that's how our program ends.