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10 Elder Care Legal Issues to Consider

By August 19, 2014June 16th, 2016Advanced Planning

Elder Law is a complex and diverse category of the law that will eventually touch someone in your family … be it your mother, grandfather, or yourself. The following are 10 elder care issues to consider.

What is an Elder Law Attorney? An Elder Law Attorney is one who focuses their practice on issues facing the aging population. He or she usually has extensive experience with issues such as retirement planning, qualifying for medicaid or medical assistance, estate planning, and representing Powers of Attorney or Guardians. Anyone can call themselves an Elder Law Attorney so make sure to ask about their experience.

What to expect from an Elder Law Attorney? You can expect to discuss your present financial and health situation, as well as your personal history and goals for the future. They would also request to see any current estate planning documents. In addition, they will also help guide you through complex issues and confront difficult decisions. In most cases, they will work closely with your financial planner or accountant. It is also important to know the attorney’s fees up front to avoid misunderstandings later on.

When to prepare a plan: When you are healthy and competent, creating a plan can ensure your objectives are met. The plan can change over time and adjustments will need to be made but it is important to be prepared. In addition, adult children can find it difficult to talk with their parents about certain issues. A good attorney knows this and understands that part of their job is to make the client feel comfortable.

With the help of an experienced Elder Law Attorney, the complex task of planning for the aging process can be manageable.

Documents to consider: There are 4 major legal documents that you should consider:

  • Will: A Will allows you to dispose of your assets in a manner that you desire and allows you to designate who will be your Executor or Trustee. Each individual has his or her own Will.
  • Durable General Power of Attorney: This document allows you to appoint someone to act on your behalf if you become unable to make choices on your own. This individual can make financial decisions such as writing checks, selling real estate, or signing a contract.
  • Health Care Power of Attorney: The same concept as the Durable General Power of Attorney but deals with health care matters such as what type of treatment you should receive, where you should receive that treatment, or what type of medications you should be on.
  • Living Will or Advance Health Care Declaration: This document allows you to choose whether you would want “heroic measures” taken to extend your life if you were in a permanent state of unconsciousness with no significant hope of recovery.

Power of Attorney vs. Guardianship: As stated above, the Power of Attorney can make decisions regarding financial and health care matters. In most circumstances a Power of Attorney can handle the situation and there won’t ever be the need to get a Guardianship. Guardianship is a legal proceeding in which the Court directs who will oversee the affairs of an individual without sufficient competency. A Guardian is appointed to protect the health, safety, and financial well being of the incapacitated person.

Know the difference between Medicare and Medicaid (Medical Assistance): Many of us know what Medicare is and seniors over the age of 65 typically qualify for Medicare depending on their work history. Medicaid provides health coverage to more than 4.6 million low-income seniors where qualifying will depend on your assets and income. If your assets are in a range where getting sick or getting long-term care would decimate your finances then having a financial plan would be vital to your future. As the cost of long-term care is skyrocketing, consulting an experienced attorney in Medicaid rules can be crucial.

Transferring Money: Ensuring that you can provide for yourself and spouse in retirement is crucial. Planning can involve asset protection and/or qualifying for Medicaid. By gifting money and transferring it out of your estate you may be disqualifying yourself and your spouse from obtaining benefits. Most benefits have a five-year look back period where the government scrutinizes your financial records. If you gifted money within five years of applying for benefits you could be disqualified. The best advice is to plan ahead.

Nursing Home and Health Care Costs: Make sure to consider the cost of health insurance, retirement homes, and long-term care. Nursing homes offer different options like assisted living or Alzheimer’s care. Investigate what you are getting for the money. An elder law attorney will likely not have expertise in these areas but these topics should be discussed in the context of your financial and estate planning.

Family Dynamics and Disagreements: Do you have more than one child? Are you in a second marriage? Do you have stepchildren? Is there one child that you have financially supported more than the others? Sometimes this anxiety can be multiplied if the same child is the power of attorney. It is important to make your choices clear early on, so that everyone is on the same page. Disagreements and arguments sometimes lead to court battles that can break up families.

Elder Abuse: Elder abuse claims are rising every year. Abuse can take different forms, from physical or mental to financial abuse. There are civil and criminal remedies if there is the suspicion of fraud or abuse. If questions arise concerning a power of attorney’s actions, an accounting could be ordered by the Court. If someone is taking advantage of another, a Guardianship could be needed. It can be beneficial if a team of individuals are the elder’s advocate to create a check and balance.

With the help of an experienced Elder Law Attorney, the complex task of planning for the aging process can be manageable.

[author] [author_image timthumb=’on’][/author_image] [author_info]Steve Potts is a partner at Herr, Potts and Potts. In his practice, he handles a variety of matters including estate planning, estate and trust administration, federal and state income tax, real estate, family law, and elder law matters. Steve is a member of the Pennsylvania Bar Association and the Chester County Bar Association. He is licensed to practice law in the state of Pennsylvania and before the United States Tax Court. He has given numerous lectures to disability groups concerning guardianships and the benefits of special needs trusts. Steve received his B.A. from Franklin and Marshall College in 1999 and received his J.D. from the University of Pittsburgh School of Law in 2002. He served on the Board of Bournelyf Special Camp and currently sits on the ARC of Chester County Board. Steve lives in West Chester, Pennsylvania with his wife Julie and three children. For more information on his firm click here.[/author_info] [/author]