Protecting Our Elder Law Community During the COVID-19 Emergency

Whitney Gagnon Headshot
Whitney A. Gagnon
Director, Trusts & Estates Department
March 30, 2020

As the COVID-19 outbreak continues to affect our most vulnerable community members, there are steps that we can take to help protect and advocate for our elderly, disabled, or infirm clients.

The state of emergency declared in Executive Order 2020-04 by Governor Sununu on March 13, 2020 included an order prohibiting visitor access to assisted living facilities, long term care facilities, nursing facilities, and residential care faculties.  Although there are certain exceptions contained in the Executive Order, there are no exceptions for in-person legal services.  With limited access to legal services, our elderly community faces additional risks as it becomes more difficult to establish estate planning documents such as Durable General Powers of Attorney (for finance), Health Care Advance Directives, Last Wills, and Revocable Trusts, some of which must be signed in the presence of “qualified witnesses” or notarial officers.  These documents allow individuals to achieve their financial and health care objectives, appoint a trusted individual to act on their behalf in the event they are unable to act, and ensure that their wishes are followed.

Fortunately, Emergency Order #11, signed on March 23, 2020, granted temporary authority to perform online notarizations of legal documents.  The Order creates an exception to the requirement that the signatory personally appear before the notarial officer.  A notarial officer can now witness an act through video and audio conferencing where the signatory is at a different physical location.  As a result, we can, in certain circumstances, continue to “meet” with our elderly clients and assist them in creating these fundamental estate planning documents.  We have implemented procedures that provide guidance to elders in accessing these legal services and that safeguard against elder abuse, including undue influence.

During this time of uncertainty, it is increasingly important for our elders to be able to create comprehensive estate planning documents, and, in particular, Durable General Powers of Attorney, which allow individuals to appoint financial agents to act on their behalf in the event they are unable to act.  In the absence of a Durable General Power of Attorney, an appointment of a guardian by a probate court may be necessary.  By having a Durable General Power of Attorney, trusted individuals may facilitate legal and financial transactions on behalf of elders who are in social isolation or ill and otherwise unable to communicate their wishes.

The declaration of the COVID-19 pandemic as a national emergency on March 13, 2020 allowed the Secretary of Health and Human Services to temporarily waive or modify certain Medicare and Medicaid rules under Section 1135 of the Social Security Act.  Often referred to as “Section 1135 waivers,” these new rules promote access to care services in order to meet the immediate needs of our elderly community.  As the need for long term care services continues to increase, these flexibilities allow for increased care coverage under our benefit programs.  The New Hampshire Section 1135 waiver requests were granted on March 23, 2020, and include protections such as suspension of pre-admission and annual screenings for nursing home residents, suspension of Medicaid fee-for-service prior authorizations and extension of such pre-existing authorizations, and extensions of time to appeal a decision or request a fair hearing, among others.

In response to the relief effort, on March 13, 2020, the Centers for Medicare and Medicaid Services took actions to increase Medicaid coverage for care in a skilled nursing facility by waiving the Medicaid “3-day rule” and increasing the period of time that may be covered by Medicaid.  Medicare will now cover long term care costs without the requirement of a 3-day inpatient hospital stay for those affected by the emergency, such as those who (1) are evacuated from a nursing home, (2) are discharged from a hospital in order to provide care to more seriously ill patents, or (3) need long term care as a result of the emergency regardless of whether that individual received care in a hospital beforehand.  Further, the 100-day coverage period may be extended up to an additional 100 days without requiring a new benefit period (usually a discharge to home for 60 days or more).  The expansion of Medicare coverage affords additional time to elders in applying for Medicaid continuity of coverage for the care services.

Although the lasting effects of COVID-19 on our elderly popualation are largely unknown, as practitioners and advocates, we are ready and able to assist our most vulnerable community members through this difficult time.