Should I Consider Working with an Elder Law Attorney?

Partnering with an elder law expert is the best way to make life transition easier as seniors age. RC Online’s recent article entitled “Why Is It Ideal for Working with An Elder Law Attorney During Life Transitions?” explains that many people have issues in the stage of life when they’re weak and not feeling well. This can result in health or mobility issues for many family members. The challenges faced by the family can cause financial strain, making lifestyle adjustments difficult, the article says.

Elder law attorneys can help family caregivers understand their loved one’s current situation and provide possible future solutions. This includes planning for situations where a debilitating illness requires long-term care.

Elder law attorneys often see various financial and medical circumstances when representing seniors in court, so their assistance can be extremely valuable when addressing issues, such as managing long-term care needs.

Specialized services for elderly care. Elder law attorneys focused on legal matters concerning older individuals. An elderly law attorney will be familiar with the elder laws of your state and will be able to identify potential conflicts or issues easily. As a result, they’ll be able to take appropriate actions to protect their client’s interests and rights.

Long-term care plan development for seniors. An elder care attorney can provide an objective perspective on the kind of care for their elders. This can help create a longevity plan that meets everyone’s needs.

The attorney will focus on families’ issues and problems as parents or spouses age. They provide legal services to individuals facing aging challenges, such as health care decisions and financial planning. An elder law attorney will consider the required level of care and whether a person can remain in their own home or require long-term nursing care.

Help for families in mediation and education. These are critical parts that play an important role during a family’s transitional phase. Mediation helps families maintain communication, and education provides knowledge for handling various issues.

It is important to have legal agreements related to retirement benefits, assets and who will be responsible for caring for an elderly loved one. An elder law attorney can help make these arrangements to prevent family fights and protect assets. They can assist seniors as well as heirs and beneficiaries to prevent losing assets due to financial problems or other circumstances.

Reference: RC Online (Feb. 14, 2023) “Why Is It Ideal for Working with An Elder Law Attorney During Life Transitions?”

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March 10, 2023

Elder Law / Medicaid

Getting the Government to Pay for you to care for Mom

Mom needs assistance and you are always there to help. Wouldn’t it be great if you could get the government to pay you an hourly rate for what you are doing already? In New York State, the Consumer Directed Personal Assistance Program (CDPAP) provides a unique approach to personal care that allows consumers to choose and direct their own care providers, including family members or friends. In this article, we’ll discuss how CDPAP works and how it can help someone whose mother needs assistance.

What is the Consumer Directed Personal Assistance Program (CDPAP)?

The Consumer Directed Personal Assistance Program (CDPAP) is a program in New York State that allows individuals who are eligible for Medicaid to choose and direct their own personal care services. Under CDPAP, the consumer, or their representative, can hire and manage their own personal care aide, including family members or friends, who are paid by Medicaid.

How does CDPAP work?

To participate in CDPAP, an individual must be enrolled in Medicaid and require assistance with activities of daily living (ADLs) such as bathing, dressing, grooming, toileting, transferring, and ambulation. The consumer, or their representative, must also be capable of directing their own care or have a designated representative who can do so on their behalf.

Once enrolled in CDPAP, the consumer or their representative can hire a personal care aide of their choice, including family members or friends, to provide care. The personal care aide must meet certain qualifications and undergo training, but they do not need to be certified or licensed. The consumer, or their representative, is responsible for managing the personal care aide, including scheduling, training, and supervision. The personal care aide is paid by Medicaid through a fiscal intermediary, who also handles payroll and taxes.

How can CDPAP help someone whose mother needs assistance?

CDPAP can be an excellent option for someone whose mother needs assistance with activities of daily living. By allowing the consumer or their representative to choose and direct their own personal care aide, CDPAP can provide a level of flexibility and control that is not available with traditional home care services.

One of the biggest advantages of CDPAP is that it allows family members or friends to provide care, which can be especially beneficial for elderly individuals who prefer to be cared for by someone they know and trust. Additionally, family members or friends who provide care under CDPAP can be paid for their services, which can help alleviate financial burdens and provide a source of income.

CDPAP can also be beneficial for individuals with complex medical needs or disabilities. By allowing the consumer or their representative to choose and direct their own personal care aide, CDPAP can provide a more customized approach to care that is tailored to the individual’s unique needs and preferences.

Call our office to find out how to get your parent eligbile for Medicaid and how you can get paid for care.

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February 26, 2023

Elder Law

How Does Guardianship Work?

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

Guardianship is the position of being responsible for someone else. State courts usually appoint a guardian to make decisions for a person, if the court finds that person to be incapacitated or unable to make safe and reasonable decisions for themselves. People who are placed under guardianship, known as “wards,” often lose their independence in making financial, legal and health care decisions.

If full guardianship is awarded, the person cannot make decisions about whether they may vote, marry, where they live, or make their own end-of-life decisions.

Two tasks that are evaluated when considering guardianship are a person’s ability to manage personal finances and to take medications as prescribed.

The court may call on a geriatrician or psychiatrist to evaluate the person’s functional behavior, cognitive function, disabling conditions and ability to meet their essential needs.

There are benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves.

this, of course, assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system include minimum standards for guardians, lack of regular independent reviews of the need for guardianship and lack of educational requirements for guardians.

Once guardianship is assigned, there is a tendency for the person to become lost when no follow-up is done. The very same person who lacks capacity to care for themselves is not going to be able to advocate for themselves, contact an attorney or access funds for court proceedings.

There is also a tendency to assign full guardianship for a person, rather than less restrictive alternatives.

There are alternatives, but they require planning and discussion. More than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones, according to an article in the Journal of the American Geriatrics Society. Families should have a conversation at the first sign of memory loss or when preparing for retirement regarding wishes for end-of-life care and write them down as part of an Advanced Directive—also known as a Living Will and Health Care Power of Attorney—when preparing their estate plan.

Another important document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices.

Designate a Power of Attorney and list two or even three back-up candidates. This person will be responsible for financial, legal and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is the ideal solution. However, there are instances when the best person to be a guardian is not a family member, but a court-appointed outsider. This relieves the family of being the ones who need to inform a person suffering from dementia with the news of having to move into a nursing home facility or sifting through financial records to learn that the family home is in foreclosure. The family can focus on being supportive and loving, while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about how guardianship works, and whether it may be the right move for your family.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”

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January 17, 2023

Elder Law / Estate Planning

Is Guardianship a Good Idea?

Guardianship is usually an act of last resort, embarked upon when there is no lesser restrictive means of protecting a person. There are steps to be taken to avoid being placed under guardianship, including signing a durable financial power of attorney and a medical power of attorney to allow someone of your choosing to make important decisions for you.

If you have these documents and later become incapacitated, there won’t be a need for guardianship because you’ll have an agent or agents in place to act on your behalf.

It is when there has been no advance planning and you develop a significant cognitive impairment when guardianship becomes necessary, according to a recent article, “Guardianship gone good: Protections afforded by guardianship may be necessary,” from The Dallas Morning News.

What if the powers of attorney you had so diligently prepared became invalid? It is possible but can be easily avoided if you take the right preventive steps.

First, make sure to review these documents every now and then. If someone you named to serve in one of these roles has moved far away, they may not be able to serve. Do you have a second person named for financial or medical POA? The same could occur if the person named became incapacitated, died, or declined to serve.

Second, you could have an agent who does not act in your best interest, often referred to as a “rogue” agent. This could be worse than having no agent.

Third, if you are acting against your own best interest, there’s not much a power of attorney can do to protect you from yourself. If your incapacity leads you to making bad decisions which jeopardize your own welfare, a court may create a guardianship to protect you from yourself.

This is why guardianships are nuanced, with every situation requiring a different solution.

For example, levels of incapacity vary. If the cognitive impairment is mild, you may not need someone to act for you. If your impairment is severe and leads to self-harm, violent outbursts or harm to others, a guardianship may become necessary.

Another concern for families whose loved ones have become incapacitated is their vulnerability to scammers.

While guardianship receives a lot of negative coverage in the media, it is, in many instances, a useful and valuable tool used to protect loved ones.

Reference: The Dallas Morning News (Nov. 13, 2022) “Guardianship gone good: Protections afforded by guardianship may be necessary”

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December 5, 2022

Elder Law / Estate Planning

Why Long-Term Care Insurance ?

About 70% of people over 65 will need some sort of long-term care. It may be temporary, but it can be expensive. It is also important to remember that is not a reimbursable expense under Medicare, unless the stay is under 100 days, says Nola.com’s recent article entitled “Facing up to the financial realities of elder care.”

A year in an assisted living facility during that same period is about $55,000 a year, on average, nationwide. Hiring an hourly home health aide (based on a 44-hour workweek) costs $60,000 a year.

While there is the option of long-term care insurance, it must be purchased when you’re still young to make the premiums affordable. Denials are also frequent for those with pre-existing conditions, like diabetes, heart disease, or obesity. Dementia is an automatic rejection by insurers. A major variable in the price is the amount you want the policy to cover, and for what duration. The average price for premiums if you’re 55 years old is about $2,200 a year for $200 in benefits a day (although a private room in a nursing home costs around $300 a day). Women, traditionally, are more expensive to insure because they live longer. If you delay until you’re 70 to buy long-term care insurance, a man’s premiums are about $5,000 a year, while a woman’s is over $7,000.

There are alternatives to buying long-term care insurance. However, it means investing retirement money early enough to cover the rising cost of being a resident in an out-of-home facility.

In many states, Medicaid will cover nursing care only after you’ve depleted any savings down to $2,000 or so. That would mean depleting all of your retirement savings before becoming eligible. However, before you think you can just give your money away after a diagnosis, the state has a look-back period. That means the state can “look back” over a certain time before applying (usually five years) to determine whether monies were given away at less than fair market value. This will deny your Medicaid application.

At the current rate of inflation and with continually rising healthcare costs, by 2050, a private room at a nursing facility for a year will cost well over $300,000. That’s a figure that will break most people’s banks.

Reference: Nola.com (Oct. 14, 2022) “Facing up to the financial realities of elder care”

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November 11, 2022

Elder Law

Can an Elder Law Attorney Help Me with Medicaid?

Paying for a nursing home – Ensuring that the elderly have their rights respected is extremely important. That is where an elder law Medicaid attorney can play a major role.

MarketWatch’s recent article entitled, “What does an elder law Medicaid attorney do?” explains that an elder law attorney specializes in the needs of older adults, which can be different when compared to younger adults, such as Medicaid.

The financial rules for Medicaid coverage are complicated and state-specific. However, generally people must spend down to about $2,000 in savings and investments.

Planning to use Medicaid for paying for nursing home is also complicated by the fact that, while its coverage of nursing home care is comprehensive, its payment for home care and assisted living facility fees is only partial and differs both from state to state.

An elder law Medicaid attorney knows and understands the Medicaid requirements. Medicaid qualification generally comes with a very specific set of requirements. The elder law Medicaid attorney can help you with this application process for paying for nursing home.

Medicaid is only available after a person has depleted almost all their assets. An elder law attorney can use techniques to lower an applicant’s countable income or assets. That will help make the applicant eligible, while protecting their life savings and home at the same time.

In addition, an elder law Medicaid attorney can help with some pre-planning for emergency situations if you need to be paying for nursing home. This may include estate planning. In particular, a durable power of attorney for health care is a legal document that lets your designated agent or proxy make medical decisions for you, if incapacitated.

Another document is a living will, which is designed to apply only in very limited situations when you have an incurable or irreversible medical condition or conditions that will most likely will result in your death within a short period of time.

A living will can address life-sustaining treatments, such as ventilators, nutrition via a feeding tube and cardio-pulmonary resuscitation (CPR) or other extraordinary measures. It can also address issues like pain management and palliative care.

Reference: MarketWatch (Oct. 4, 2022) “What does an elder law Medicaid attorney do?”

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November 3, 2022

Elder Law / News

Estate Plans Can Protect against Elder Financial Abuse

Elder Financial Abuse is far more common than most people think, especially of the elderly. There are several types of individuals more at risk for exploitation, according to a recent article from mondaq titled “How An Estate Plan Can Protect Against Financial Exploitation.” These include someone with a cognitive impairment, in poor physical health, who is isolated or has a learning disability.

Exploiters share common characteristics as well. They are often people with mental health illness, substance abusers or those who are financially dependent on the person they are exploiting.

There are warning signs of financial abuse, including:

Changes in patterns of spending, transfers, or withdrawals from accounts
Isolation from friends and family
Unexplainable financial activity
An inability to pay for routine bills and expenses
Sudden changes to estate planning documents, beneficiary designations, or the addition of joint owners to accounts or property titles

One way to avoid Elder Financial Abuse is with an estate plan prepared in advance with an eye to protection. Instead of relying on a durable power of attorney, a funded revocable trust may provide more robust protection. A revocable trust-based plan includes safeguards like co-trustees and a requirement for independent party consent to any trustee change or amendment.

A support system is also important to protect a person if someone is attempting to exploit them. Estate planning attorneys team up with financial advisors, CPAs and other professionals to create a plan to avoid or end elder abuse. Other steps to be taken include:

Consolidating accounts with a trusted financial advisor, so all assets are easily observed
Have a family member or trusted person receive copies of account statements
Consider a credit freeze to avoid any possibility of being coerced into opening new credit card accounts or taking out loans.
Establishing a budget and sharing information with advisors and a trusted person, so any spending anomalies are easy flagged.

Elder financial abuse is an all-too common occurrence but taking proactive steps to safeguard the vulnerable family member is a good strategy to deter or thwart anyone intent on taking advantage of a loved one.

Reference: mondaq (Sep. 23, 2022) “How An Estate Plan Can Protect Against Financial Exploitation.”

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October 17, 2022

Elder Law / Medicare

Do Hospice Patients Recover?

There are several dimensions to hospice care, and a recent article in Seasons titled “How common is it for hospice patients to recover?” discusses each of them. The article notes that it’s highly unusual for hospice patients to “recover.” The diseases that prompt people to come into hospice initially are conditions that, by definition, aren’t curable.

However, it’s not uncommon for patients to experience stabilization of their condition. For example, a patient may have experienced a significant stroke from which his or her physician doesn’t think they can recover, so they are admitted to hospice. He or she may begin to experience some stabilization, despite the fact they remain significantly compromised—and they no longer qualify for services.

Some patients are admitted to the hospice with critical diseases – fractures, trauma, infections, sepsis, etc. – from which they are likely to die. However, ultimately, frequently and inexplicably, they don’t.

Similarly, patients with chronic, progressive diseases, such as Alzheimer’s, congestive heart failure, or chronic lung disease, may have a trajectory that suggests they won’t survive more than a few months, making them eligible for services. However, with the provision of hospice services and control of problematic symptoms, their trajectory may change—no longer anticipating a short course.

Regulators know that conditions may change, and patients once eligible for hospice may no longer have a terminal condition that might qualify them for hospice. They are sometimes called “hospice graduates.”

Most facilities see about 5-15% of their admitted patients who ultimately “graduate” and are discharged from hospice services.

In addition, there’s a rare but identified condition referred to as “vanishing cancer syndrome.” This is a circumstance in which a cancer is definitively diagnosed, with no treatments offered, or progression despite treatment. The patient is admitted to hospice, but several months later, the patient hasn’t passed away and seems to be improving.

Further studies demonstrate the cancer is no longer there. Theories ranging from a “super immune” response to a miracle have been proposed, but an explanation for the phenomenon remains elusive.

Aftercare is individualized and would typically include some aspects of home health services and/or private duty resources, as well as ongoing management by the patient’s primary medical team.

Reference: Seasons (Aug. 17, 2022) “How common is it for hospice patients to recover?”

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October 7, 2022

Elder Law

There are Less Restrictive Alternatives than Guardianship

The benefit of restrictive alternatives to guardianships is that they don’t require court approval or judicial oversight. They are also much easier to set up and end.

The standard for establishing incapacity is also less rigorous than the standard required for a guardianship, says Kiplinger’s recent article entitled “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First.”

Limited guardianships. A guardianship takes away an individual’s right to make decisions, just as full guardianships do, but they are specific to only some aspects of the person’s life. A limited guardianship can be established to manage an individual’s finances and estate or to control medical and health care decisions. These types of guardianships still require court approval and must be supported by a showing of incapacity.

Powers of attorney. Powers of attorney can be established for medical or for financial decisions. A second set of eyes ensures that financial decisions are well-considered and not harmful to the individual or his or her estate. A medical power of attorney can allow an agent to get an injunction to protect the health and well-being of the subject, including by seeking a determination of mental incapacity. A durable power of attorney for health care matters gives the agent the right to make medical decisions on behalf of the subject if or when they are unable to do so for themselves. Unlike a guardianship, powers of attorney can be canceled when they are no longer needed.

Assisted decision-making. This agreement establishes a surrogate decision-maker who has visibility to financial transactions. The bank is informed of the arrangement and alerts the surrogate when it identifies an unusual or suspicious transaction. While this arrangement doesn’t completely replace the primary account holder’s authority, it creates a safety mechanism to prevent exploitation or fraud. The bank is on notice that a second approval is required before an uncommon transaction can be completed.

Wills and trusts. These estate planning documents let people map out what will happen in the event they become incapacitated or otherwise incapable of managing their affairs. Trusts can avoid guardianship by appointing a friend or relative to manage money and other assets. A contingent trust will let the executor manage assets if necessary. For seniors, it may be wise to name a co-trustee who can oversee matters and step in should the trustor lose the capacity to make good decisions.

Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First”

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September 29, 2022

Elder Law

Understanding the Issues of Elder Law

Elder Law – The legal needs of many older Americans go beyond basic legal services. They are also all intertwined. In addition to understanding the legal issues and complications that older Americans face, elder law attorneys must also understand the surrounding personal concerns of their clients, such as health, financial and family issues, and how those affect their clients’ legal issues.

Recently Heard’s article entitled “What You Need to Know About Elder Law” explains that other specific areas of expertise include the following:

End of life planning could extend to planning your health care support system as you age, signing a power of attorney, establishing a living will and other issues surrounding end of life care.
Financial issues frequently entails questions about retirement and financial planning, housing financing, income and estate tax planning and gift tax issues.
Long term care can include planning for asset protection, insurance for in-home care or assistance with activities of daily living, Medicare planning, insurance, veterans’ benefits and other issues.
Residents’ rights issues may include claims or complaints you bring while a patient in a nursing home or long term care facility.
Workplace discrimination issues stem, from the fact that older Americans sometimes face age and disability discrimination in the workplace.
Guardianship issues might include guardianship avoidance, planning wills and trusts, planning for the future of a special needs child, probate court and other issues surrounding minor or adult children.
Landlord-tenant law may mean handling disputes with landlords, contesting an eviction, dealing with foreclosure issues, rent increases and more.
Abuse, neglect, and fraud. These elder law attorneys specialize in cases where an older client is being victimized.

An elder law attorney can be a great partner for you as you plan out the legal and financial aspects of the next stage of your life-or the life of a loved one. Speak to one today.

Reference: Recently Heard (June 23, 2022) “What You Need to Know About Elder Law”

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July 22, 2022

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