Defining Elder Law
Elder law is a broad field of law that seeks to address issues affecting the elderly and their families. Counsel in this area of law practice is designed to address the various legal issues that commonly affect the aging population, including long-term care, Medicaid, Medicare, Social Security, housing, retirement planning , and estate planning and asset protection. It may also include, to some extent, other issues like guardianship, elderly abuse, and age discrimination. Elder law practitioners may also advise clients on medical issues, housing issues, long-term care issues, retirement issues, and other issues that affect the aged, people living with disabilities and their caregivers.
Medical Directives and Medical Choices
Advance healthcare directives, living wills, or powers of attorney (POA) for healthcare are all terms that refer to forms of planning for medical decisions. A healthcare directive is a document that specifically authorizes another person to make medical decisions for you, if you are unable to do so due to incapacity. Healthcare directives may also address your wishes regarding various treatments. As with any aspect of planning, however, decisions made regarding healthcare must be based on the knowledge and understanding of the situation. That is where good healthcare planning comes in, at the right time, in the right way, and involving the right people.
Planning for medical decisions is essential for our elders. It gives them both the comfort of knowing that they have some say in what will happen to them, along with the relief that comes from having someone else who will look out for their interests when they are no longer able to do so themselves.
Fundamentals of Estate Planning
The foundation of elder law is estate planning. Wills and trusts are the two most important estate planning tools. Wills can protect you while you’re alive, but they protect your family after you pass. Trusts can protect you while you’re alive, but they have even greater impact on how you are remembered after you die. At its core, what does all of this mean? Estate planning is about collaboration. It’s about finding the right people to make sure that your goals are fulfilled to the best of their abilities while protecting the family you leave behind.
The key part of all of this is knowing that you need to have a will and a trust. The key to avoiding probate is having either a will or a trust. You also need to know who the best people are to have collaborating with you. So let’s go through each of these issues one at a time.
You guessed it! The purpose of a will. Virtually everyone needs a will. Most people have a strong wish about what they want done with their money and possessions when they die. This is expressed in the will. Only a will clearly demonstrates your intent. Wills are the foundation of every estate plan. They also protect you while you are alive by naming the people who will be responsible for making all important decisions as to your money and medical care should you not be able to act on your own behalf.
Wills protect your family after you die in the following ways: By becoming an enrolled agent, I am able to prepare tax returns for deceased individuals and their estate. As I mentioned earlier, having a will is the first step in estate planning. The second step is knowing the right people to collaborate with. An attorney specializes in interpreting the law. Having an attorney on your team is essential when you want to protect yourself, your family and your wishes. Typically, there are four key people that you need on your planning team: Each of these individuals specializes in a certain area. A planner helps you determine what you need to do to best protect yourself, your family, your wishes and your money. For example, each state has an allowable amount of assets that you may own and still be eligible for Medicaid coverage. If you have more assets than that, you will have to decide what to do with those excess funds. The estate planning attorney knows which legal documents you need in order to protect yourself during your lifetime and upon your death. The estate administration attorney knows what documents you need to execute upon your death and what kind of taxes your estate will owe upon your death. The financial professional knows better than anyone how to protect your money. The cost of doing nothing always outweighs the cost of knowing that you’ve protected your family as best as you can.
Guardianships and Conservatorships
Guardianship and conservatorship are commonly used legal arrangements with the general aim to protect or conserve the property of an adult. A guardianship entails a court appointing an individual to be responsible for the care and custody of a ward, i.e., an adult that the court determines is incapacitated. In Utah this person is referred to specifically as a "guardian." The individual appointed by the court as guardian may make all decisions involving the person’s welfare, including such things as: medical decisions, where the person will live, what services they will receive, and other decisions regarding their support and maintenance. A conservatorship is a similar legal arrangement with the general aim to protect or conserve the property of an adult. In Utah this person is referred to specifically as a "conservator." A conservator is an individual appointed by the court to be responsible for the care and custody of a wards assets or estate. The individual appointed by the court as conservator functions as a fiduciary, who holds and manages the personal assets of a protected person. The conservator is responsible for managing, protecting, preserving, and conserving the assets of the estate. Furthermore, the conservator is required to make disbursements from estate for the care of the ward if income is insufficient to maintain the person and their estate. In both situations, the court will require that notice is given to the individual upon whom the court is considering conferring these responsibilities. Specifically, in guardianship proceedings the individual is entitled to a hearing upon the petition for the appointment. Additionally, the individual may seek to have the petition dismissed upon a showing that the appointment should be considered by the court. Furthermore, if the individual is not satisfied with the terms of the guardianship order prescribed by the court, then the individual may seek to have the court amend the terms/orders. As defined by Utah Code Ann. §75-5-303, the court will appoint a guardian over an individual when a court is convinced that an individual has become an "incapacitated person." The term "incapacitated person" is specifically defined as "an adult whose decision making is impaired either totally or in some but not all matters, including the ability to: provide for the person’s recognize needs for physical health, food, clothing, or shelter; manage the individual’s property or financial affairs; resist fraud or undue influence; or appoint and dismiss an agent and to receive notifications as provided in Title 75, Chapter 2, Part 15, Powers of Attorney." In other words, an adult may become incapacitated by some sort of degenerative disease, accident or even senility. Furthermore, the court can also appoint a conservator over an individual’s estate under similar circumstances. The court can appoint a conservator regardless of whether a guardian is appointed over his or her person. Id. As defined by Utah Code Ann. §75-5-401, the court will appoint a conservator over one’s estate when the court determines that the individual has become "a protected person" that: has property that will be wasted or dissipated unless proper management is provided; or 1) has property or a right which will be harmed or prevented unless proper management is provided and 2) the property is substantial, the funds are not entirely public benefits, and there is no competent individual who is willing and able to manage properly the money.
Fraud and Financial Exploitation
The second type is called undue influence. Not unlike financial exploitation, undue influence is a result of the influence of one person over another. Here the power imbalance is one of authority and cites a situation that serves a form of coercion. The coercion in this case occurs from pressure exerted on the testator. For example, an undue influence would be a bank employee who pushes the elderly individual into making a power of attorney. Again, as is the case with financial exploitation, this may lead to a change of beneficiary on a bank account that was not intended by the individual. Be wary of undue influence when one person has been largely absent or uninvolved in the managed person’s life, but appears out of nowhere when it comes time for the individual to make a decision.
The third form of elder abuse that is common in Florida is known as a scam or a fraud that is perpetrated on the elderly. Unfortunately, many will tell you that if you can think it up, there is someone out there who has exploited it. The scams that are particular troublesome are those aimed at getting money from the elderly. To put it plainly, they are looking for that senior citizen who has been a good saver and then preys upon that individual who may be less competent than in their glory days. One of the most commonly known forms of this is the TeleMarketing Scam . In the easiest of terms, the you’ll-never-guess-your-prize scam where the elderly individual receives a phone call and is informed that they can either purchase something that is good or be a part of something that is better but they must act quickly or else they will miss out. How many times have you been a victim of the "you better hurry" and purchased a product on the spot.
The fourth form of abuse is financial fraud. These are largely scams masquerading as financial or investment advice. A common one is the reverse mortgage scam. In Florida the Department of Financial Services has had a number of cases of reverse mortgage scams. In one instance, the scammer falsified a closing statement on a reverse mortgage and pocketed the money. In sum, the elderly victim was required to sign over his home and then soon thereafter evicted. For those who have experienced a reverse mortgage scam, becoming aware of it as soon as possible can prevent further action. Remember, if it isn’t yours and you acquire it without good reason, than don’t take it.
Some examples of financial exploitation include: Most of the time these cases result in criminal prosecution. But as the recent news has highlighted with the Grogorian case the financial exploitation may well go on until someone brings it to the attention of law enforcement. In the Grogorian case, the caregiver reportedly convinced an elderly woman to leave the home she had shared with her husband of 51 years and until her death the defendants used the woman’s money to finance their lifestyle.
Long-Term Care and Your Choices
When it comes to elder law issues, long-term care is one of the most significant. According to the U.S. Department of Health and Human Services, roughly 70 percent of persons over age 65 will require some type of long-term care at some point in their lives. The specific level of services a person may need can vary significantly even within that demographic, and closely tied to the level of service is the question of where that elder will receive those services.
There are essentially two options: in home care, or out of home care (meaning in a facility). In addition to the home care option, there are also a number of different facility types to consider, each of which offers different levels of services. Here’s a rundown of each: Nursing homes – Considered a ‘skilled nursing facility,’ this type of facility provides care 24 hours a day, and employs specifically trained nurses to help elders with a variety of needs, often including chronic illnesses, dementia, incontinence, post-surgical recovery assistance, etc. Assisted Living Facilities (ALF) – A step down from nursing home care, such facilities provide room and board, personal care and medical supervision, but only on a limited basis and with fewer professionals on staff. Care at an ALF is often provided in a hotel-like environment, where elders have their own rooms and can receive care from nurses within the facility, but still have important physical autonomy. These facilities tend to be for those whose independence is somewhat limited, but who can still perform certain daily tasks and can function relatively well on their own. Independent Living Facilities – These are facilities that allow persons to live in private apartments and have lots of freedom to come and go as they please. They provide services like laundry, meals and recreation. Residents typically still drive or walk on their own outside the facility, and while they have access to emergency care and sometimes joint activities throughout the month, they are still mostly independent within the facility. Memory Care Facilities – The term ‘memory care’ refers to care for patients suffering from Alzheimer’s disease or dementia. Such facilities sometimes can be an ALF facility, or they can be standalone memory care facilities. They provide 24-hour monitoring and accommodate the distinct needs of patients with memory loss.
Social Security Benefits
Elder law helps people manage what we refer to as "birthright" benefits – such as Social Security and Veterans benefits. Income sources for many elderly people come from these two programs: Social Security, which is a contributory earned benefit that most working Americans have had paid into it for many decades, and Veterans benefits, which is a program designed to help veterans of the Armed Forces and their spouses who need the benefit of assisted living in their last years of life.
Planning for the collection of these benefits is a critical issue for elder law attorneys in preparing for the transfer of assets, the filing of income tax returns, the preparation of estate plans and Medicaid applications. However, this type of planning is much more complex than most people realize.
Individuals collect Social Security benefits based on the contributions made during their working years. The monthly payment amount is based on your earnings at retirement and how long you worked for a U.S. employer. Benefits are also available to families based on the worker’s record. Workers must generally have earned credits for at least 10 years and must be at least age 62 (these requirements increase with time). Other specified family members of wage earners also qualify for benefits , including spouses, ex-spouses and children under specific circumstances.
In addition to Social Security, many older Americans are entitled to receive Veterans benefits from the United States Department of Veterans Affairs ("VA"). VA compensation benefits provide regularly scheduled payments to veterans with disabilities who were caused or aggravated during their service in the Armed Forces. Like Social Security benefits, VA benefits are based on the service member’s record of duty and the nature of their disability.
Sometimes, depending on the length of the marriage with the spouse of the veteran, and the amounts of additional benefits that the spouse needs, additional benefits are available to the spouse of the veteran. If the maximum income requirement is not overstated, these benefits can reduce the need for the veteran or his or her spouse from being placed in an assisted living residence.