ELDER LAW NEWS & NOTES
FEBRUARY 2010 /NUMBER 67
LAW OFFICE OF WILLIAM J. BRISK
1340 CENTRE STREET, SUITE 205
NEWTON CENTER, MA 02459
TEL: 617-244-4373
FAX: 617-630-1990
WWW.BRISKELDERLAW.COM
MEMBER AND FELLOW OF
THE NATIONAL ACADEMY OF
ELDER LAW ATTORNEYS
ATTORNEYS:
WILLIAM J. BRISK
ELLEN B. SCULT
CHERYL B. STRUNSKY
DAVID C. VALENTE
CLAIRE A. BARTHOLOME
PARALEGAL:
JENNIFER A. DUHAIME-BAKER
PROBATE ADMINISTRATOR:
LISA C. BILBO
ADMINISTRATIVE:
ANGELA M. GULLA
IN THIS ISSUE:
Topic Page:
Patient Advocacy 1-2
Why use a home care agency? 3
2010 Estate Tax Update 4 but our desire as patients for certainty, to alleviate our fears, and our
This newsletter is not intended
as a substitute for legal counsel.
While every precaution has been
taken to make this newsletter
accurate, we assume no responsibility
Roundtable: Dr. Gazelle on Patient Advocacy
A landmark study by the Institute of Medicine found that medical
errors cause nearly 100,000 deaths in the United States every year.
Despite efforts, especially in the past decade, to improve patient care and
reduce the incidence of hospital-acquired infections, the physician-patient
relationship has remained largely unchanged – until now.
Our January Roundtable speaker, Dr. Gail Gazelle, Assistant
Clinical Professor of Medicine at Harvard Medical School and founder of
MD Can Help, P.C., is trying to improve the physician-patient dynamic by
serving as an advocate for patients. In her own words, Dr. Gazelle serves
as a “guide by the side,” taking on the roles of patient and family
advocate, healthcare consultant, care manager, and coach. Her impact is
enhanced by her more than twenty years as a practicing physician.
Traditionally, physicians were considered deari-gods; they
monopolized specialized knowledge. Physicians are trained in medical
school to be decisive, speak in an arcane language, and, most
importantly, to seek the respect of their peers. Little to no time is spent in
classes addressing psychology or communication. In addition, physicians
can’t help but be influenced by powerful financial incentives to raise
productivity. Because they are trained to project certainty, many
physicians explain diagnoses and treatments in overly general and falsely
definite terms. The problem is, of course, not only the failure of doctors
tendency not to question or interrupt physicians.
Dr. Gazelle attributes the increasing interest in patient advocacy to the
influence of the baby boomer generation, who (unlike their parents) has
begun to challenge the physician-centered interaction by favoring a
patient-centered approach. Members of this baby boomer generation no
longer view physicians as infallible and all-powerful, demanding more
control over their care and more respect for their experiences as patients.
In part, this shift can be traced to the 1960s when the medical community
began to realize, for example, that the rate of caesarian sections had
grown too high. The shift continued through the 1980s when research
focused on serious deficiencies in end-of-life care and pain management.
Even with the backlash against HMOs in the 1990s, however, the
physician-patient interaction remained largely unchanged; today,
hospitals are measured by how they treat populations, not individual
patients. (continued on page 2)
Institute of Medicine: To Err Is Human: Building a Safer Health System. Washington,
D.C.: National Academy
1 Press, 1999.
for errors or omissions, or for
damages resulting from the use of
the information in this newsletter.
While efforts are under way to improve communication through technological advances such as
electronic medical records and patient-to-physician email, studies indicate that most physicians require
up to two years before they are comfortable enough with these technologies to generate any real,
positive outcomes. Dr. Gazelle highlighted that the significant benefits of electronic medical records
come at a price – physicians can feel constrained by new technologies, which may thwart their very
purpose, putting more distance between the physician and the patient.

While these shortcomings of our health care system may seem insurmountable, Dr. Gazelle
reports that a patient advocate can help to “navigate the healthcare maze” and empower patients to get
the care they deserve. As a physician, Dr. Gazelle provides a unique service to her clients, not only as
an ally, but as a translator enhancing communication and precise understanding between physician
and patient. While Dr. Gazelle makes clear that her services are not covered by insurance, potential
clients should review their insurance policies as to coverage for second opinions, case management, or
use funds from flexible medical spending accounts.

An advocate should ideally have some medical training, but if such a candidate is not available,
Dr. Gazelle encourages patients to rely on family members, friends, and neighbors, as appropriate.
Whoever serves as advocate must be someone that a patient can trust who will be respectful and
assertive with the physician. At the very least, an advocate can take detailed notes during
appointments, encourage the physician to clarify complex terminology, help relay a patient’s questions
to the physician, and assist the patient in complying with treatment plans.

Dr. Gazelle closed her presentation by identifying 10 characteristics of an empowered patient.

The empowered patient …

1. Remembers that he or she (the patient) is important

2. Always brings an advocate
3. Instructs his or her advocate to be assertive
4. Retains an organized personal medical file
5. Maintains a running list of prioritized questions to prepare for appointments
6. Takes notes at medical appointments
7. Is not afraid to ask questions
8. Addresses concerns
9. Asks questions when clarification or more information is needed
10. Is aware of the next steps in the plan of care

Dr. Gazelle is author of patient advocacy booklets “Being Treated for Cancer? A Doctor’s 137
Tips to Keep Your Life Healthy and Manageable” and “Don’t Leave the Hospital Sicker Than You Went
In! A Doctor’s 106 Tips for a Healthy and Safe Hospital Experience,” both of which can be purchased at
her website www.MDCanHelp.com.

2
 Why Use a Home Care Agency?

Barney Freiberg-Dale, Visiting Angels

When a family decides to seek home care for an aging relative, it often wonders about the
benefits of using an agency versus hiring privately. Although the costs may be higher, the benefits
derived from using a good agency are significant, and many families find it well worth the cost. A
good agency can change the care for an aging relative from an unending, arduous chore into a
fulfilling stage in the life of a family.

First, only an agency can do criminal background and driving record checks. Several of our
clients at Visiting Angels have come to us after a bad experience that could have been avoided with
criminal background checks – such as the caregiver who suddenly had to drop a family when she
was convicted of embezzling and sent to jail.

Second is the reliability a good agency offers. Nobody is able to be on the job every day.
When a private caregiver is unexpectedly unavailable, you will be left in the bind of filling in yourself
or leaving your relative alone. A private caregiver may promise that someone can cover for her, but
how can you be sure that the replacement has the skills required by your situation, and how can that
person possibly be available every day of the year? A good agency has many qualified substitutes.

Third is their employer’s reporting obligations. There are payroll taxes, insurance, and the
employment laws, which are more stringent in Massachusetts than federal laws. Running afoul of
these matters can produce devastating fines. If a caregiver slips on the front steps and suffers an
incapacitating back injury, unless you maintain worker’s compensation, you’re not covered.
Homeowners insurance will not cover injuries to someone working for the homeowner. A good
agency takes all of those worries off your mind by assuming the role of employer.

Good case management is an overlooked but excellent reason for choosing a home care
agency. Case managers understand the family dynamics and monitor the many physical and
mental changes that present challenges to seniors and their families. They can reduce the
enormous stress that family caregivers face in providing care. They suggest both large strategic
plans and small care plan details. They know when a sudden change in behavior or mental capacity
indicates that your loved one needs to see a doctor. And the list goes on…

Finally, there is finding the right person or people to do the care. A good agency is
constantly recruiting new people, and will match the right caregiver to the case - the reliable, kind,
trustworthy, caring person with the skills and good judgment that you need.

Most geriatric care managers, trust officers, elder law attorneys, geriatricians and other
professionals who advise families on elder care now recommend to their clients that they use a good
home care agency, rather than private aides. We at Visiting Angels are proud of our professional
referral sources. But certainly the most important referral sources we have are our many satisfied
current and former clients themselves!

Visiting Angels. 1254 Chestnut St., Newton, MA 02464. 617-795-2727. ww.visitingangels.com/newton

3
 TO DIE, OR NOT TO DIE?

Changes in the tax laws for 2010 and beyond greatly impact the tax implications for estates of
those dying in 2010. Congress, in The Economic Growth and Tax Relief Reconciliation Act of 2001
(EGTRRA), provided for the repeal of the estate tax for those dying in 2010, along with a return to the pre-
EGTRRA rules for estate taxes beginning in 2011.

At the same time, however, certain other tax provisions dealing with inherited assets were also
changed. Prior to 2010 there was a “step-up” in basis, giving the person receiving the asset a basis
based on the fair market value at the time of death and eliminating capital gains taxes on any pre-death
appreciation. For 2010, the basis of an asset will be determined using a “carryover basis” system, making
the inheritor’s basis the same as the decedent’s basis. While this change in basis will result in capital
gains taxes for pre-death appreciation, the capital gains tax rate (15%) is below the minimum rate for
estate taxes (18%) and well below the top rate for estate taxes (45%). For those with taxable estates, this
is good news. For those with non-taxable estates, it is bad news, as ALL assets will be subjected to those
rules for any size estate.

There is a slight modification in the carryover basis calculation that allows an executor to allocate
some increased basis (up to $1.3 million) for all assets, and an additional increased basis for up to $3
million in assets going to a surviving spouse. This will require extra work by those administering an estate
to do the necessary calculations and allocations, again for ALL estates.

Note that these basis changes are only for 2010, and the “step-up” system will be reinstated in
2011 when the estate tax returns.

Most estate and financial planners had anticipated that Congress would act before 2010 to revise
the estate tax system so that the changes slated for 2010 would not take place. While the House did
pass such a resolution, the Senate failed to act in time. Many believe that Congress could still act in 2010
and make their changes to the estate tax laws retroactive to the beginning of 2010, although there is
some question as to whether that would pass Constitutional muster.

Until that time, the questions remains, to die or not to die – which is better for my estate?

Law Office of William J. Brisk

1340 Centre Street, Suite 205
Newton Center, MA 02459