Understanding California’s ‘Right-to-Die Act’…a new seminar

Have you heard about California’s new End-of-Life Option Act?  Do you know what it entails?  If not, this is a seminar you don’t want to miss..

Get ready to learn everything you need to know about this new Act, and the affect it could have on your Estate and Long-term Care Planning.  A new, free informational workshop hosted by local Certified Elder Law Attorney, Janis A. Carney, will be held on May 24, 2016, at 2:30pm at the Saratoga Senior Center.

Titled “Understanding California’s New Right-to-Die Act and its Impact on Estate and Long-term Care Planning,” this program will include an explanation of California’s new Right-to Die Act, clearing up several misconceptions about its use by seniors, when it will become law in California, and what is being done by hospitals and hospice companies to implement it. We will also discuss what can and cannot be included in the senior’s estate and long-term care planning documents about the Act. Finally, we will discuss the financial impact of the Act and options for paying for services under it and other long-term care expenses.

For more info, or to sign-up, CLICK HERE.

New Seminar!



Carney Elder Law invites you to another FREE seminar..

“How To Get And Pay For Quality Long-Term Care At Home, In An Assisted Living Facility, Or Nursing Home..Without Selling Your Home or Leaving Your Family Without a Dime”


Presented by Janis A. Carney, Certified Elder Law Attorney,
with SPECIAL GUEST Don Quante, co-author of Don’t Go Broke In a Nursing Home

Highlights include:
• How to avoid having your life savings wiped out by the costs of long-term care
• What legal documents you need for the second half of life
• The asset protection language that most people don’t have in their power of attorney documents, which can help protect their life’s savings
• Veteran’s benefits that most people know nothing about
• How Medi-Cal works, what it covers, and the steps you need to take now to protect your family
• How to find the right Senior Care Facility and what to expect in the process and when you get there


Thursday, January 28, 2016 at 2:30pm
at the
Alameda Family Funeral & Cremation, Inc.
12341 Saratoga-Sunnyvale Road
Saratoga, CA 95070

Please RSVP by calling us at 408-402-6440 or SIGN UP HERE—->https://elderattorneyseminars.com/carney-saratoga

We look forward to seeing you there!

The Soldier’s Story: An Ongoing Sacrifice

In his Veteran’s Day speech, Zell Miller, a former governor and US senator from the state of Georgia, gets to the essence of what the soldier gives to us as Americans:

“It has been said so truthfully that it is the soldier, not the reporter, who has given us the freedom of the press.  It is the soldier, not the poet, who has given us freedom of speech.   It is the soldier, not the agitator, who has given us the freedom to protest.  It is the soldier who salutes the flag, serves beneath the flag, whose coffin is draped by the flag, who gives the protestor the freedom to abuse and burn that flag.Continue reading


Carney, Sugai &Sudweeks is one of only a few law firms in Northern California to offer Elder Care Services to our clients.   We first learned the value of employing care coordinators in our law firm about four years ago when Janis Carney took a course offered by the Life Care Planning Law Firm Association (LCPLFA).  The message we got from that course was that, as elder law attorneys, we should be doing much more to protect the quality of care and the quality of life of the elders we serve.

Although we had strongly recommended to many clients over the years that they hire a geriatric care manager to help them manage their elder’s care, very few ever did.  So, the LCPLFA proposed model, which bundles our firm’s planning services into one package with care coordination services, appealed to us.  Unfortunately, we could not sell it to many of our clients due to the high investment required for it and the clients’ uncertainty about the value of the care coordination services.  So, after numerous attempts to find a system that worked, we finally came to the one we have been using successfully now for over a year.

We now offer Elder Care Services separately to clients on either a flat investment or a hourly fee basis.  Further, the flat investment is now offered for one, three, six or twelve month periods and includes up to a prescribed number of hours of services by the care coordinator during the contract period: 8 hours for 1 month, 20 hours for 3 months, 35 hours for 6 months and 60 hours for 12 months.  If the time expended in a particular case exceeds the set limit during the period, we charge the excess time at half of the care coordinator’s standard hourly rate.

Of course, the initial flat investment is also a good deal for the clients price-wise, as the investment for it is between 60 and 70% of the hourly fees.  Some clients prefer to hire us initially for care coordination services on the flat investment basis, while others hire us on the hourly basis and then, if the complexity of the situation warrants it and the expertise our care coordinator brings to the case becomes clear, they generally convert to a flat investment for one or three months.  By the end of that time, the crisis is usually resolved and either we are done or the clients commit to a 6 or 12 month contract to have the care coordinator keep an eye on the elder’s care and to be there to respond promptly anytime a problem arises.

The firm’s attorneys are available to advise the care coordinator on advocacy issues, especially with regard to violations of patient rights in facilities and insurance appeals, and the clients’ eligibility for public benefits to assist with the cost of care.  Then, if the attorney needs to become actively involved with a particular problem, the client is advised and, once the client approves, we bill hourly for the attorney’s time.  This system has worked well to help clients understand the limits, scope and value of our services under the flat investment.  Now many of our clients enjoy the peace of mind care coordination services provide to them.  They are happier and so are we.

If you would like to see a description of the care coordinator services we provide, just send us an email and we will get it to you.



The EASE Plan

Emergency Advocacy Support & Education

 We all know what an awful experience it is to be sick or injured and need to go to a hospital emergency room, especially when we have no one there with us to make sure we get the attention and care we need.   Our own experiences and the stories of others warn us that NO ONE should ever go to a hospital emergency room alone.

The stats show that 1 in 5 of us in the Boomer generation (and almost 1 in 3 of us over the age of 75) will go to a hospital emergency room at least one time this year!  Unfortunately, many of us HAVE NO ONE we can count on to go with us and stay for the long hours it may take there, or do not want to feel helpless and in need of such assistance from our friends and family, or sincerely do not want to burden our friends and family members with having to go through the ordeal at the emergency room with us.  Further, few of us know what questions we should be asking about our condition or the treatment options available to us; and even less of us know our rights regarding the care the hospital is supposed to be providing to us.

Now, we at Carney Elder Law can help you.  We can be THAT PERSON for you in the emergency room.  We will be your advocate to help insure that you get the emergency medical care you need.  Due to our firm’s unique combination of elder law attorneys and professional care coordinators, we can offer you the opportunity to become a member of a new and totally revolutionary retainer program, the Emergency Advocacy Support & Education (EASE) Plan.

As an EASE Plan member, you will have the security of knowing that one of our trained and professional Care Coordinators will go to the hospital to be with you to provide the advocacy support you desperately need in the emergency room, day or night, 7 days a week.  We will be there to make sure you are not one of the “forgotten ones” in the ER waiting room, you are not left alone and helpless while the ER staff tend to others and change shifts, and you are not abused by the ER’s desire to send you home prematurely or without adequate medication and support, with no plans to follow up on your condition.

If you are admitted into the hospital, we will continue to advocate for and educate you to help you get the care you need and to make sure that the hospital does not discharge you before it is safe for you to go home or to a care facility.  If you are unable to make your own health care decisions, we can help your chosen agent for health care to evaluate your situation and your care options in light of your stated wishes and then support your agent in making whatever decisions are needed.  As a Plan member, we will obtain, and keep up to date on, your medical history and feelings about health care and life support so that we will know what you want and can advocate for your wishes when you are not able to do so yourself in an emergency situation.

When you become an EASE Plan member, we will also review your estate planning legal documents to determine if they need any changes.  You could then retain us to do that work (it is not included as a service of the EASE Plan) or you could have your current estate planning attorney do it.  We will get a list of your doctors and get a medical history from you, including any medications you take, to ensure we have the information about your medical condition needed by the emergency room doctors and staff.  And, we will get a list of persons who you want to have contacted in case of an emergency.

EASE Plan members also will be invited to exclusive educational programs throughout the year to learn to be an effective advocate for your own good health care.  We will teach you the questions to ask your doctor, when to ask for and how to get a second opinion, how to switch doctors or insurance carriers, how to select a nursing home or assisted living facility and the differences between them, what public benefits are available to help pay for your care, what resources are available to help you safely recuperate at home or age in place, and much more.

The EASE Plan is a true retainer type program, meaning that our clients retain us to be able and willing to assist them in the event that they have a medical emergency.  The services provided by this program will ease many of your worries about aging in place and living independently.  It can also ease some of your children’s worry about you living so far from them.  For those of you living in an assisted living or other senior community or nursing home, it can help ease your children of the problems caused by missing to much work in attending to your frequent visits to the emergency room while making sure that they are alerted in the event that you really need them there.

For more information about the EASE Plan or to let us know you want to become a member, call us at (408) 354-0200 or email us at info@css-lawfirm.com.  Note, this service is not yet on our website, but we hope to have information there in the near future.

National Elder Law Month

As proud and dedicated members of the National Academy of Elder Law Attorneys (NAELA), we are helping to recognize and celebrate May as National Elder Law Month.  Along with hundreds of elder law attorneys across the country, our entire firm focuses our practice on the issues of older individuals and individuals with special needs in order to help them deal with their special concerns.  We also dedicate substantial time to educating seniors, individuals with special needs, and their families in the greater Silicon Valley about the legal matters they care most about and the importance of planning for their future health and legal needs.

As part of National Elder Law Month, during May our firm will be holding the following workshops and seminars at the firm’s offices and around the community:

  • Secrets of Long-term Care Planning:   May 7th & May 14th, at the firm’s law offices
  • Spring Client Seminars on The EASE Program (Emergency Advocacy Support & Education):  May 8th & 16th, at the firm’s law offices
  • Issues of Elder Law, presented as part of the “Should I Stay or Should I Go” series:  May 7th, at the Los Gatos Recreation Center
  • Secrets of Planning for Long-Term Health Care for Seniors:  May 21st, at the Palo alto Financial Planning Forum, The Sheraton Palo Alto
  • Planning for the Second Half of Life:  May 22nd, at the SVBA Luncheon Meeting, Santa Clara Superior Court

Check out our firm’s website  to learn more about us and how dedicated we are to representing and advocating for older and disabled individuals and their families in our community.

To learn more about National Elder Law Month, visit the National Academy of Elder Law Attorneys (NAELA) website.

Information on Elder Abuse

A recent story in the Los Gatos Patch illustrates that elder abuse can occur anywhere, even here in our beautiful little town of Los Gatos in the heart of the highly educated Silicon Valley.  It is a growing problem everywhere.  Certainly, we don’t know why the abuse happened in the particular case that was reported or everything about why it ever occurs.  And, we are struggling as a society with efforts to stop its spread.  But, we do know that help is available for victims.  Concerned people can spot the warning signs of a possible problem and make a call for help if an elder is in need of assistance.  We can start by knowing that elder abuse includes:

Physical abuse, which is the type of abuse we most commonly recognize.  It is the use of physical force that results in bodily injury, physical pain, or impairment to a senior. Examples of physical abuse include acts of violence (such as hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning), as well as inappropriate use of drugs and physical restraints, force-feeding, and physical punishment of any kind.

Sexual abuse, which is non-consensual sexual contact of any kind. Sexual contact with any person incapable of giving consent is also considerer sexual abuse and includes, but is not limited to, unwanted touching, all types of sexual assault or battery, such as rape, sodomy, coerced nudity, and sexually explicit photographing.

Emotional or psychological abuse, which is the infliction of anguish, pain, or distress through verbal or nonverbal acts. Examples of this type of abuse includes verbal assaults, insults, threats, intimidation, humiliation, and harassment. It also can include treating an older person like an infant; isolating an elderly person from his/her family, friends, or regular activities; and giving an older person the “silent treatment.”

Neglect, which is the refusal or failure to fulfill any part of a person’s obligations or duties to an elder, is also abuse. It typically means the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included in an implied or agreed-upon responsibility to an elder.  It also includes the failure of a person who is responsible for the elder’s finances to pay for necessary home care services and the failure on the part of a care-provider to provide necessary care.

Abandonment, which is the desertion of an elderly person by an individual who has assumed responsibility for providing care for the elder, or by a person with physical custody of an elder.

Financial or material exploitation is the illegal or improper use of an elder’s funds, property, or assets. Examples include, but are not limited to, cashing an elderly person’s checks without authorization or permission; forging an older person’s signature; misusing or stealing an older person’s money or possessions; manipulating, coercing or deceiving an older person into signing documents such as contracts, trusts and a will.

Self-neglect is characterized as the behavior of an elderly person that threatens his/her own health or safety, such as refusal or failure to provide himself/herself with adequate food, water, clothing, shelter, personal hygiene, proper medication, and safety precautions. Certainly we may inflict such abuse on ourselves as our personal choice.  However, when the abuse is the result of incapacity, the court can step in and appoint a conservator to prevent further such self-neglect.

If you are worried about an elder in your family or a older (or other dependent adult) friend or neighbor in Santa Clara County, you can contact Adult Protective Services (408-975-4900 or 1-800-414-2002) to make a report, call 911 if you think it is an emergency situation, or seek the advice of a local elder law attorney, such as our firm.  We can also help seniors protect themselves from future abuse through pre-planning.  Contact us if you have a question or want to discuss your circumstances.

The DRA is coming to California Medi-Cal, we think!

Medi-Cal is California’s version of the federal Medicaid program that pays for medical and long-term care for patients who meet the eligibility criteria.  In order to get the federal Medicaid funds, a state must set up and operate the program and contribute about half of the funds for it.   Because it is operated by the states, each state can call the program whatever it desires. While most states just call their program “Medicaid,” California calls its program “Medi-CAL.”

The federal government has established rules for the program covering eligibility, share of cost (i.e. the co-payment each beneficiary must pay), recovery, and other related matters.  Although the Feds put pressure on the states to adopt the federal rules for its state program, each state is free to create its own rules for its program; and, although the federal government could withhold funding for the program if the state does not adopt the federal rules, it has never done so. The only real restriction on the states is that the state rules cannot be MORE restrictive than the federal rules, least the state violate the federal supremacy rule.  In California, our program is much LESS restrictive than the federal program with respect to eligibility for most benefits.

California’s Medi-Cal rules are essentially the basic federal Medicaid laws established in 1988 with the passage of the Medicare Catastrophic Coverage Act (MCCA).   In 1993, the federal government passed the Omnibus Budget Reconciliation Act (OBRA) modifying the basic Medicaid law adding restrictions to the Medicaid rules regarding transfers (i.e. gifts) of assets.  Except for some of the new rules regarding the treatment of trusts, California has never adopted the OBRA rules.  Then, in February, 2006, the federal government passed the Deficient Reduction Act (DRA) that added even more restrictions to the transfer rules along with making other changes, such as limiting the value of the home that is treated as an exempt asset and changing when the penalty for making transfers starts.  OBRA and DRA, combined, make it enormously harder to qualify for benefits on the program.

With the passage of the DRA in 2006, California began the process of changing our laws and regulations to implement not just the DRA changes, but all of the 1993 OBRA changes as well.  This is a two step process in California.  The first step was completed in 2008 when our state legislature modified our statutes governing the Medi-Cal program.  The second step is for the Department of Health Care Services to promulgate and pass new regulations so that it can implement the new statutes.  It has taken over 5 years, but DHCS, this past September, issued the first draft of at least part of the new regulations for public comment.  The new regulations had many problems, which elder law attorneys across California, along with others, put in comments about.  Now, we are waiting for a revised draft of the regulations.

Our crystal ball (for that is as good of a source of information about this as anything else) says that we should have the next draft in a year or so.  The thinking is that the next draft is likely to need a little more tweaking, so we will have to wait for a third draft, which will probably be the draft that is passed and implemented.  If our crystal ball is right, the restrictions and changes the Feds made to Medicaid under the DRA and OBRA should finally be incorporated into the Medi-Cal rules we use in California sometime in 2014 or 2015.   Even without our crystal ball about when it will arrive, what is clear is that DRA is on its way to California.  It is just a matter of time now.  If you are worried about preserving your home and protecting yourself and your family from the devastating costs of nursing home care, call for an appointment with Janis to find out how we can help!


Boomer Children Are Not Worrying About Receiving or Leaving an Inheritance

I just read an article from the LA Times that I have to share with you.    The story is about the fact that the author just discovered, through a survey, that a large percentage of baby boomers are not planning to, or at least are not worried about, leaving an inheritance to their children.   As an estate planning attorney, I am not seeing this much.  However, as an elder law attorney, I am hearing it quite often from the boomer children of elderly parents.

My elder law practice focuses on long term care planning and emphasizes planning for quality of life’s through quality care of elders.  While we do asset protection as part of the long term care planning, it is not intended to protect the assets for the children to enjoy, but instead for the children to use to provide quality care for the parents.   I frequently hear the boomer children say to Mom or Dad, “we just want to make sure there is enough money to care for you; if there is anything left for us after that, fine, but don’t worry if there is nothing left for us.” Perhaps I hear this so often because it is the PC thing to say or maybe I am putting the words in the children’s mouths.  Nevertheless, I believe that it is heartfelt by the children.

Boomer children, I believe, are setting the example that children should not expect an inheritance.  As boomer parents (yes, I am one), we have given our children good educations and helped launch them into life, sometimes helping them with the purchase of their first homes and the amounts we have spent on their weddings is outrageous!  We have admittedly experienced better earning levels than any prior generation and were able to buy our homes in desirable neighborhoods when they were actually affordable.

Now, as we enter our “golden years” we expect to live as well as we always have done.  We enjoy life and are not worried about spending money to do so.  When we get to the point where we need care, I cannot see us saying, “I want to save my money for my children.”  No, I believe we will not hesitate to spend whatever it costs to provide for the best quality of care that we can afford for ourselves and will not worry about leaving anything for our children just as we told our parents to not worry about leaving anything for us.

Surprising News About Incapacity

For the past month, I have been sharing with everyone some amazing new (at least new to me!) information I’ve learned about incapacity that I want to share with you, too.

Dr. Jonathan D. Canick, Ph.D., a clinical psychologist/neuropsychologist at Sutter Health in San Francisco, spoke at the June meeting of the Northern California Chapter of the National Academy of Elder Law Attorneys (NAELA).   Dr. Canick specializes in the study and assessment of mental capacity and shared some startling facts with us.

First, he said that Alzheimer’s disease starts about 16 years before there are any noticeable symptoms.  Further, by the time there are visible signs, 80% of the neurons in the person’s brain are dead, leaving only 20% to do the brain’s work.  Wow!   That it takes a loss of 4/5 of our brain before it is apparent that something is wrong, shows how well the pathways in our brains can adapt.

An even more startling fact is that our mental capacity does not degrade as we age, as long as there are no illnesses, like Alzheimer’s disease, or injuries, like from traumatic brain injury or stroke.   In fact, capacity is graphed as a straight horizontal line from our early adulthood to when we die (again absent illness or injury), in contrast to the downward sloping line that depicts the decline in our physical body due to aging.

Dr. Canick acknowledges that there are some changes in the brain as we age that result in an elder not being able to take in new facts at the rate a younger person can do so.  Makes sense to me!  We all know how fast a young child learns.  But, what Dr. Canick explained is that, while our elders are not able to learn new things as fast, they are much better at analyzing and evaluating new information and situations.  This is why elders have historically been revered as “wise”.

Dr. Canick believes that, in the not too distant future, mental capacity will be part of our annual check-up, leading to early detection of illnesses or injuries to the brain.  Early detection will enable early treatment that can slow the effects of illnesses like Alzheimer’s.

Finally, Dr. Canick revealed that recent studies show that, other than genetics, the two factors most affecting whether a person develops Alzheimer’s disease are lack of  sufficient sleep and cardio exercise.  The recommendation is 8 hours of sleep every night and 30 minutes of cardio exercise at least 5 days a week.     Well, I guess that this last bit of information should have been expected.  It seems that everything works better when we get enough sleep and exercise.