All About Elder Care Law
Elder care law refers to the legal practice area that focuses on aspects of senior citizen care, from estate planning and Medicaid to guardianship issues and end-of-life decision-making. Specialized lawyers and law firms with knowledge in these fields are typically adept in multiple areas of elder care law. For people struggling to navigate the legal system as they approach their sunset years, knowledge of this practice area is a critical resource. Family members who are simultaneously balancing busy careers and busy home lives – such as caretaking for children of their own – may find managing the legal needs of aging loved ones overwhelming. Elder care law exists to help all parties struggling with legal issues surrounding senior citizen care.
A key component of elder care law involves estate planning. Drafting wills and trusts to properly hand down property is a subject that many people are familiar with, but elder care law also includes less common estate planning subjects such as long-term care insurance and durable power of attorney provisions. The latter involves legally empowering certain individuals to make decisions about personal and financial matters on behalf of seniors when those individuals can no longer handle such tasks on their own.
Medicaid and Medicare are the two federal programs that provide health coverage to seniors. Navigating these programs is not always a straightforward task. Elder care law includes assisting clients with determining the most efficient way to fund medical care through these programs. This can include finding other sources of income and cash flow to assist with medical needs , as well as making sure that clients do not take financial hardships upon themselves unnecessarily.
Guardianship extends into two areas of legal practice: guardianship for adults and guardianship for minors. Adult guardianships involve helping people with diminished mental capacity arrange their needs with some type of legal intervention. Guardian advocates and surrogate forms are used to help manage the affairs of those past the point where they can do this on their own. Elder care law also includes extensive work in the areas of practices pertaining to child guardianship and custody among relatives.
End-of-life legal planning encompasses many issues, from survivorship benefits and medical directives to in-home care and hospice services. An elder care law attorney may also work with clients on medical power of attorney and living wills, both commonly used documents for managing the end-of-life care of senior citizens. These document don’t just provide guidance on the issue of medical care, but it can also apply to the means by which an elder passes away, whether that is through in-home care or facilities.
Issues in Elder Care Law
In our experience, some of the most common legal issues seniors face and need assistance with are health care powers of attorney, health care proxies, durable powers of attorney and guardianships.
When persons don’t consider planning until after they lose incapacity, the only alternative we have is an appointment of a guardian. Healthcare decisions involve a living will declaration, which serves as a basic framework for making decisions on medical care. The living will declaration only applies in terminal illness and end-of-life situations, and only if two doctors certify that the person is no longer able to make treatment decisions.
A durable power of attorney is also something we prepare for seniors, which can avoid the appointment of a guardian and can allow for very complicated or very personal issues to be addressed. Historically, durable powers of attorney have been effective upon execution, but under the new law as of January 1, 2015, we can now prepare them to spring into effect. The durable power of attorney should include the ability to make financial decisions, sign tax returns and do whatever is possible under the current tax code to be the best steward of the elderly person’s finances.
Powers of Attorney and Legal Guardianship
A power of attorney and legal guardianship are both legal steps taken to protect you and your family as you age.
But they are two very different concepts.
For instance, a power of attorney is a way for you to legally appoint someone to make certain decisions for you or on your behalf. For many people, it’s convenient and relaxes the burden on their loved ones. A power of attorney allows you to cast the net of responsibility to a trusted loved one well before needing it, so that you know who will be there for you – and how.
However, a power of attorney, in regard to elder law, must be established while you have the capacity to make decisions on your own. In this way, it is similar to a will, since both represent a legally binding agreement that is only valid when you are alive.
What if I don’t have a power of attorney in place?
Well, that means you, unfortunately, have to go through legal process to obtain legal control of your loved one’s assets.
This is where legal guardianship comes into play.
If an individual does not have a power of attorney in place when he or she becomes incompetent (usually due to dementia or serious illness), you may consider pursuing legal guardianship in the probate court.
This process isn’t swift, and requires accounting for the person’s entire estate and finances, as well as having a doctor repudiate your loved one’s competency in front of a judge.
Finally, all of this is generally public knowledge, which means that anyone can view your loved one’s financial information if they choose. All of this can be very challenging for both you and your loved one, especially during an already difficult time.
Powers of attorney
vs. legal guardianship
Power of attorney
- A way to legally appoint someone to make decisions for you or on your behalf
- Works only when you still have legal capacity to create the contract
- Similar to a will, in that it only works to make decisions – or to pass on responsibilities – while you are still living
Legal guardianship
- State control of an individual’s assets if there is no power of attorney in place
- Requires an individual to petition the probate court to have a guardian named for the individual
- Isn’t confidential; the entire process is public knowledge
The clear choice for most, in addressing the question of power of attorney and legal guardianship, is to set up a power of attorney while you are still able to do so.
Planning for Long-Term Care
Long-term care planning is essential for any elder law plan to be fully effective. It determines how benefits will be paid and how facilities will be selected. A good long-term care plan also provides for how benefits will be spent. The plan must do this while paying for the costs of living at the same time and allocating any remaining assets amongst family members as desired. These are just a few of the issues that must be addressed by a good elder care plan.
Medicaid and Medicare are the two most common forms of government assistance for costs related to nursing home care. Only Medicaid will pay for care in a nursing home for an indefinite period of time. For a limited period of time, Medicare will pay the costs of nursing home care. Both are highly regimented programs with strict benefits criteria. Eligibility parameters vary from program to program. The extent of benefits varies as well.
Medicare is a program that provides medical insurance for the nation’s seniors. Medicare benefits for elder care cover costs of care in a skilled nursing facility. Home care nurse visits and physical, occupational and speech therapy are also covered. In order to be eligible for Medicare benefits one must have been hospitalized for a minimum of 3 days and then moved to the nursing facility for continued medical attention. However, Medicare only pays for a maximum of 100 days of skilled nursing care and will not pay for any of the costs of a room and board.
Medicaid benefits cover licensed assisted living facilities, adult foster care and nursing homes. Medicaid benefits are determined on a need basis. Programs include the community support waiver, which pays 100 percent of approved costs. Medicaid will continue to pay out these benefits until a program participant no longer requires that level of care. The personal care budget caps benefits at a monthly allowance. The monthly allowance pays for services that exceed the level of activities for daily living, or ADLs, help ordinarily provided by family members. Medicaid benefits cover the objects that enable an individual to be more independent from caregivers, such as assistive devices, wheelchair ramps and special tubs. In order to qualify for Medicaid and its benefits, applicants must meet both income and asset level criteria.
Long-term care insurance is a private insurance policy. LTC policies are underwritten and issued by both life and health insurers. LTC policies are built to provide benefits for people who have not reached a level of need that qualifies them for Medicaid benefits. LTC policies may have a 30-day elimination period. A government program will pay benefits for those who require care for at least 30 days. LTC policies range widely in terms of benefits and costs.
Plans can be comprehensive or limited. Comprehensive benefits may include costs associated with in-home care, adult day care, nurse practitioner services, respite care and adult foster care. The types of care offered and their corresponding benefit limits depend on federal and state legislation, as well as the policies offered by the insurance company. If a LTC policyholder has Azure or alternative benefit coverage, policies can cover assisted living and skilled nursing care.
There is no single correct way to pay for long-term elder care. As noted, Medicaid, Medicare and LTC policies are available but have limitations. A classic approach to elder care planning is to have a substantial sum set aside for care in both assisted living facilities and nursing homes. Other strategies for financing elder care include purchasing a life insurance policy with an accelerated death benefit, accepting premiums from a life insurance policy so that a policyholder’s beneficiaries may use the funds to pay for nursing home expenses, and setting up a life care contract.
Elder Abuse and the Law
Unfortunately, not all caregivers have the interests or the ability to protect people with dementia. Elder abuse can take many forms: physical, emotional, sexual, neglect, abandonment, financial or through the use of restraints. There is also a high incidence of the improper use of psychotropic medications, like antipsychotic drugs, for chemical restraints in nursing homes and assisted living facilities. Those with mild impairment may have some awareness of their circumstances but not the ability to protect themselves. The presence of an elder law attorney with expertise in elder abuse may be necessary to assist individuals in getting the help deserved due to mistreatment. Signs of elder abuse include the following: To report elder abuse or find help , contact the elder abuse hotline in your area (look in the government section of the phone book). They will investigate the matter and may call the offending party into a hearing in violation of the law. If there is a need for immediate protection, call 911. If you are a senior citizen being abused or neglected by others, contact the local aging office to learn about available resources; they may have a legal aid attorney they can refer to you for help. An elder law attorney will assist you in getting the protection that you need.
Estate Planning for the Elderly
A good estate plan is essential for seniors because so much is at stake. Life savings, property, and family harmony all depend on what works best for you. Think of all the things you own. It is probably a lot to pass on to your heirs. You want to be sure your wishes are carried out the way you want them to be. You should also consider whether you want a will or a trust. A will is a legal document that states how you want your property distributed when you pass away. A will becomes effective as soon as you sign your name, but it will not take effect until after your death. A will can be revoked or changed at any time prior to your death. However, because a will does not go into effect until after your death, your desired distributions will not be carried out until after your death. This means that your beneficiaries will not have any access to the property you leave them in your will after you die. So if you own a car, and you leave your niece your car according to your will, and it takes a few weeks to go through the court process, your niece will have to figure out another way to get to work while she waits for the court to order the car be transferred to her. This is why many people choose to create trusts as part of their estate plans instead of a will. Trusts are also a legal document that states how you want your property distributed, but they do not go into effect until another event takes place (either as soon as you pass away or once you become unable to manage your affairs). Once the trust goes into effect, the terms of the trust transfer some of your property into the hands of a trustee where they will remain for the benefit of your named beneficiaries. Property held in a trust will not be subject to probate. This means that the distribution of your property will be handled by private contract and will not be ordered by the courts. It is also very important to name a power of attorney to act for you in times of need. Your attorney-in-fact should be someone you trust completely because this person will have access to your bank accounts and even your medical decisions. This responsibility should not be taken lightly, and you should be sure to name someone that shares your values. It is always a good idea to use professionals when planning for your estate. Good estate planning attorneys, financial advisors and accountants can help you make decisions that are right for you.
Elder Law FAQs
The following consist of the most frequently asked questions we receive on elder care law and related issues:
- "Okay, my loved one needs help, now what do we do? How do we find the right resources to ensure that he or she gets the appropriate level of care?" One way to address this question is to contact an eldercare provider organization to set up a plan with the elder legal attorney who can assist with your loved one’s medical, financial and legal needs. They can assist with finding the right doctors, health care professionals and medical facilities to provide the necessary care and help you navigate through a complex system of paperwork and planning.
- "We want to keep mom as independent as possible, but we are worried that she is unable to really make decisions anymore. What can we do?" Third party decision making, which allows someone who has an incapacity for dealing with one or more functional areas, can be established pursuant to MCL 700.5506 .
- "What is guardianship? Do I have to run to court to get it?" Guardianship is a system that will place a person in charge of another’s affairs who is unable to manage their own affairs. There are different types of guardianship, including limited guardianships, general guardianships and short-term guardianships. Yes, the process requires you to go into court, have an emergency hearing and have the judge decide your request immediately, but there are times when that is needed.
- "What are my role and rights as a caregiver?" You have to understand that your role and your rights may change and evolve as elder person’s needs and conditions change and evolve. And those changes will be based upon many factors, including your own personal circumstances and resources, your family’s resources and capacity to continue as a caregiver, the condition of the elder person in need of care and how best to provide them the types of care they need, and the like.