Older adults will eventually encounter age-specific issues which can require legal services. But at what point should you seek legal advice, and for which situations? Is it to make end-of-life decisions or for income-related advice and support? Perhaps it is due to hardships related to consumer-related problems because unfortunately, many seniors fall prey to scams such as fraud, identity theft and other crimes. Seniors are faced with important and often vital end-of-life decisions that require the expertise of a professional.
When is it time?
Older people occasionally, sometimes more often, have to rely on others for things related to their daily activities. This can make the elderly more susceptible to things such as elder abuse, which can be in the form of physical abuse, neglect, or even telephone scams designed to take advantage of vulnerable older adults. Fortunately, there are laws that protect the elderly from such abuse, and if you or a loved one ends up in a situation like this, it’s time to call a lawyer.
Maybe its time to think about end-of-life arrangements such as an advanced directive, a living will, power of attorney, funeral planning, or estate planning. Whether it’s a living will, which specifies what healthcare-related actions you want taken if you’re unable to make decisions due to temporary or permanent incapacitation, or whether you want to plan for the future financially, an attorney who specializes in elder law should be contacted.
It’s wise to protect your property and assets by having a will even if you don’t have a large estate or a lot of money. The main reason is to ensure that your property and valuables go to the person or persons that you choose. If a will has not been drafted, the property can be distributed according to their state’s laws.
Preplanning for a funeral can take a huge burden off of family members; it offers emotional and financial security for seniors and their loved ones. Since 2000, The National Funeral Directors Association now follow a Bill of Rights for funeral contracts, which serves as a resource to understand what to expect from preplanning your funeral. However, before signing any funeral arrangement contracts it is important to have a legal professional look over the documents.
Where do I Look for Legal Advice?
Where are the experts that can help a senior with end-of life-concerns? In the early 2000’s the specialty of Elder Law surfaced, which is devoted to the issues that seniors face. Elder law encompasses all aspects of planning for aging, illness and incapacity such as:
Health and personal care planning, which includes powers of attorney and living wills, lifetime planning and family issues.
Fiduciary (financial) representation, financial planning, housing opportunities and financing, income, estate, and gift tax matters.
Planning for a well spouse when the other spouse requires long term care, asset protection, public benefits such as Medicaid and insurance, and Veterans’ benefits.
Capacity, guardianship and guardianship avoidance.
Resident rights in long-term care facilities and nursing home claims.
Employment and retirement matters, age or disability discrimination and grandparents’ rights.
Will and trust planning, planning for minor or adult special needs children.
There are a number of situations in which you may find yourself in need of an elder law attorney. In general, however, the sooner the better is the rule when it comes to making plans for the future. It’s wise to sit down with an attorney even in mid-life or sooner to discuss things such as advance directives and wills in case of unforeseen events. The better prepared you are now, the more you can enjoy your golden years knowing all your end-of-life decisions will be carried out.
If you have a loved one living in an elder care center, you will typically want to monitor their care to ensure the comfort and safety of the person. Neglect is a serious concern for those who have family members living in nursing homes or other care facilities for the elderly. While accidents can happen, such as falls, there are some conditions that may require hiring an elder care attorney for the good of all people living in the facility.
Steps to Take
Consulting elder home attorneys should occur anytime you suspect abuse or neglect in a nursing home facility, but the first step is to document the situation and remove your loved one from the home immediately. While you are in the process of removing your loved one, you can contact an elder care attorney about the situation to determine whether or not abuse or neglect has legally taken place.
Contacting an attorney before signing any documents from the elder care center is vital. Some nursing centers for the elderly will attempt to have the family sign papers releasing the home from any damages that have occurred as a result of abuse or negligence. Knowing how to recognize the signs of abuse, and which steps to take if you notice any signs or symptoms, is vital to the health and well-being of any loved one in an elder health care facility.
It is very important to seek help from elder care attorneys as soon as possible after an incident involving neglect or abuse occurs. Some states have a statute of limitations that can prohibit filing a lawsuit after a specific time period. Your lawyer can assist you in determining the statute of limitations in your state if needed, but the best course of action is to seek help as soon as you think negligence has happened.
When seeking assistance for an elderly member of the family, elder care lawyers have specialized knowledge based on experience in working with abuse in senior living centers and nursing homes. An attorney from your local area will know state laws in addition to federal regulations for filing a lawsuit in the case of negligence or abuse in an elder home setting. An attorney with experience is often the best choice simply because they may know more about how to handle a case involving a nursing facility.
Preparing for Your Case
In order to file a lawsuit, you will need to have the proper documentation. Taking photos of the injuries is advisable in all situations. You may need to contact your attorney to determine whether police involvement is necessary when taking photos. You will also need to allow your attorney to gather any patient records that are needed. The records will show every activity provided by the staff of the care facility, including turning bedridden patients and other everyday care activities.
Some nursing homes will have a lawyer on site, but in most cases it is best to seek an outside attorney to advise you on your case. An experienced lawyer can assist you in all aspects of filing for damages and may be able to help you recover some losses incurred by additional medical costs associated with the incident, as well as compensation for suffering.
To quickly find elder care for yourself or your loved one in any city or state, try our Eldercare Locator
Time quickly passes us by, doesn’t it? It probably seems like just yesterday when you first bought your home, became a parent, sent the children off to grade school, and then to college. Now you have entered your senior years, and it all seems to have gone by in a blink. Through these changes in your life, new family issues that were not a great concern in the past have now become important issues to address. Are you now facing the time when you are ready for an assisted living facility or require senior citizen care?
Planning Your Future
Consider asking yourself some important questions. What do you want for your future and what is important to you? Write the answers down, and develop a plan to address the lifestyle you want to have, and the type of assisted living facility, or senior care that you require. Your retirement planning can be structured so that you receive the highest benefits possible. You can save a great deal of time and money if you properly plan your future. An elder care lawyer can help you plan your estate properly so that you can find just the right facility or level of care you may need at this time.
How Elder Care Lawyers Can Help
An elder care lawyer can save your family from having to go to court to ask a judge for permission to make medical or financial decisions for you, should they become necessary. The new HIPAA laws will disallow your family to make medical decisions for you if you do not plan ahead. You can appoint someone as your elder care manager in order to make these decisions for you when you can no longer do so for yourself.
Once you have an elder care manager, you will want to work out the details of your estate and retirement with your lawyer because you could become a victim of excessive taxes that can consume your estate. Your lawyer can work out a plan that will protect you from the taxes on retirement and IRAs – which in some cases, can exceed 70 percent. In order to afford assisted living or senior care, this has to be avoided. Make sure you are protected by planning ahead.
Your attorney can get you the elder care help that you need if you are thinking along the lines of assisted living facilities, or perhaps more extended senior care. These things can be complicated, and you should have help in order to protect your assets for the future. With the advancements in medicine, growing very old and becoming unable to take care of either your property, or yourself, is a likely scenario for most of us. For this reason, it is necessary to do some short- and long-term planning for your senior years. Once you address all of these issues with your lawyer, you can be guided in the best direction for you and your surviving loved ones. Talk with your lawyer, and you will feel much more at ease about all the things you now have to decide.
Caring for the elderly is a difficult task. It is physically demanding and emotionally challenging. The closer you are to the elderly person, the more difficult you may find the job. It’s hard watching someone who used to take care of you wither and slide as age and disease begin to take their toll. Hiring a home health care worker can take the burdens off of you, allowing you to spend this time simply enjoying each other’s company. Here are some things you should know about elder care law when you start this journey.
Power of Attorney
There are legal issues associated with caring for an elderly person who can no longer can for himself or herself. It is important to have a Power of Attorney to provide care for the person. This will allow you to make important medical decisions when loved one can no longer make those decisions.
The Power of Attorney can also grant financial access, allowing you to keep the medical and other bills paid. Whoever is chosen for the Power of Attorney should be absolutely trustworthy and should have your loved one’s best interest at heart.
It is also important to put a living will in place now, before a major medical problem arises. Decisions regarding life support and quality of life are best made when everyone is calm to avoid the drama of having to make those decisions at the hospital later.
When this important decision is made ahead of time, it will be easier to follow through with it when the time comes. The emotions and drama of the moment will be removed, allowing you to follow through with what your loved one would really want.
There are public benefits available that can help cover the cost of care. These include Medicaid, Medicare, and Social Security. However, receiving the benefits is not as simple as filling out a form and waiting for a check. Those people with the means to pay for their care are expected to do so. Educate yourself about these programs before they are necessary so you know how to help the elderly in your life plan.
The government will look back on asset transfers and sales for several years, so waiting until it’s time for assistance and then moving assets into someone else’s name won’t work. Insurance programs are available, however, to help pay for the time in between when assistance is required and when the government will actually provide benefits.
Nursing Homes Not Required
There are many wonderful elder care agencies that specialize in providing individual elder care. Unless your loved one requires ongoing, specialized care, he or she will probably qualify for in-home care. The great allure of these services is that your parent can stay in the home that he or she loves, allowing them to maintain some feeling of independence.
Standard of Care
Elder care law does set a certain standard of care. If you decide to take care of your loved one on your own and are unable to meet those standards, Adult Protective Services could step in and force you to put your loved one in a nursing home. Whether the elderly person is in a facility or cared for at home, doctors and public servants alike are constantly watching for signs of physical or mental abuse. If there is a belief that an elderly person is being robbed financially, abused, intimidated or otherwise harassed by a caregiver then they can – and will – call the authorities.
Not all harm occurs intentionally. Neglect can be just as damaging as abuse and is just as serious. Take the time to make a serious assessment of your skills, time, and patience level before deciding whether you will be the primary caregiver. You may decide it is truly in everyone’s best interest to hire an elder care provider.
It is important to understand the laws and all the ramifications that come along with elder care management. Every state has different laws, so before making decisions about moving your loved one, or allowing a family member to move in with them, speak to an elder care law attorney in your area. Know what the laws are so you can make informed decisions that are truly in the elder person’s best interest.
In the interview below Matt Parker of Marshall, Parker & Associates LLC. You can find a collection of useful links and resources related to elderly care law on the Marshall Parker and Associates site, and Matt shares a ton of helpful information on elderly care legal issues in the interview below. You can play the recording via the video link below, or read the transcript of the interview provided just below that.
Matt Parker Senior Law Interview
Q and A Transcript:
Woman 1: This call is now being recorded.
Brenda Ankley: So if you could, could you please introduce yourself. Tell me a little bit about Marshall, Parker & Associates, and your role as an elder law attorney.
Matthew Parker.: My name is Matthew Parker. I’ve been practicing as an attorney for 16 years. For the last 11 years I’ve been specializing in estate planning and elder law at Marshall, Parker & Associates.
My job as an elder law attorney involves helping people protect themselves from the personal and financial risks as they age. Through the use of estate planning documents and asset protection planning, we help people develop plans to protect themselves in the event of a disability, and protect themselves from financial risks such as taxes and long term care expenses.
Brenda Ankley: Who would you say then should be seeking the advice of an elder law attorney? And specifically, why elder law?
Matthew: An elder law attorney is uniquely trained to answer questions about the issues facing us as we age. We are regularly exposed to constantly changing benefit programs, such as Medicare and Medicaid, along with inheritance taxes.
Generally, anyone who wants a level of expertise when trying to create a plan to protect themselves from the costs of aging should probably seek the counsel of an experienced elder law attorney. I should also point out that elder law attorneys also counsel families who have a loved one with special needs.
A family who is caring for a disabled child, such as someone with autism, often requires a unique estate plan, including a special needs trust or a guardianship. They will recently seek the counsel of an elder law attorney for such planning.
Brenda Ankley: Is there an ideal time to seek out the advice? I know a lot of people probably wait until it’s almost too late. Do you have advice as to a time frame for seeking your advice?
Matthew: Well basic estate planning is appropriate for those of all ages. For example, a power of attorney allows someone to make financial and medical decisions for you when you’re unable to make the decisions for yourself. Anyone could be in an accident and need such a document.
If you have a young family, a will can set forth who will care for your children if you are not around. So estate planning is not just for the elderly. Now, more complicated asset protection planning is important as we get older.
Many of our clients visit us as they near retirement. They are concerned about topics like inheritance taxes and preserving their savings for retirement. They want a plan to make sure their savings will be available for them and their spouses as they age.
Brenda Ankley: That actually leads into the next question. If you do have a loved one who maybe hasn’t done that yet, but is being admitted into a higher level of living. For example, a nursing home or an assisted living facility. Are there ways to help protect the assets of somebody who is in that situation?
Matthew: Many of our clients are facing a long term illness like dementia or Alzheimer’s. Their stay in the nursing home could be several years. Nursing homes charged about $8,000 per month in 2011. They can consume the saving of a couple very quickly.
However, there is planning that can be done to qualify someone for various government benefits that pay for long term care. These programs are asset and income based. So you will not likely qualify unless some planning is done. We help families restructure their assets so the spouse, who’s staying at home, is protected from impoverishment. Some families plan years ahead of such an illness.
If you do, you can preserve a significant amount of the savings from long term care costs. However, many of our clients do no pre‑planning. However we are still able to help them preserve much of their savings.
Brenda Ankley: With that then, what are the biggest challenges that families face when dealing with a loved one who is in that situation where there hasn’t been pre‑planning?
Matthew: The biggest challenges are those that the attorney really can’t solve. It principally focuses with the relationships with family members. How do the children convince their dad, for example, that he needs to do some estate planning when he stubbornly refuses to do so?
How does the husband in a second marriage deal with his wife’s daughter who distrust his decision when making decisions for his incapacitated wife? How does sisters deal with their controlling sister who wants to make all the decisions for her aging parents without their involvement?
All of these are examples of the family dynamics that elder law attorneys face everyday. We can provide a lot of legal and financial solutions. We don’t always have the answers for how families can cope with difficult personal relationships.
Brenda Ankley: What do you do in those situations?
Matthew: Well, can you repeat the question?
Brenda Ankley: I said what would you do in a situation like that? Would you refer them to counseling?
Matthew: Well, as I mentioned, it’s very difficult for attorneys to resolve the family dysfunction. There are people who are involved in counseling families to get through these conflicts. But it’s very difficult to get siblings to agree to go to a counselor to solve these problems.
Many times these relationships are simply not resolved adequately. And the attorneys simply have to work with the dysfunctional relationships between these family members in order to help their client, either preserve their assets, or establish a plan that will protect them in the event of disability.
Brenda Ankley: Well, particularly in light of the family dynamic when it’s tough to get everybody to agree, or to get dad to participate, or whatever the case might be. Is there one thing, one document, one piece of information, that as a family, as an individual, you should obtain? What would that be?
Matthew: Well one of the basic estate planning documents I would recommend is a good power of attorney. Powers of attorney name someone to be your representative when you are unavailable or incapacitated.
They serve to allow someone to mange your finances or make medical decisions when you are incapacitated. They are practical documents that can be used whenever there is a medical crises, such as a car accident or a sudden illness, like a stroke.
Without these documents, it’s very difficult for a family member to authorize medical care or pay your bills. Powers of attorney are just as valuable for the young, as they are for the elderly.
Brenda Ankley: And a power of attorney can also be a financial document, correct?
Matthew: Yes. The powers of attorney typically cover two topics. One would be for bill paying. The other would be for making medical decisions for you when you are incapacitated. And a financial document covers everything from managing your home, to retirement accounts, life insurance policies. So they cover both topics, the financial and the health care.
Brenda Ankley: What are your thoughts on living wills? I would assume that is another popular estate planning document that is drawn up for the aging and the elderly.
Matthew: A living will is also known as a advanced directive. It sets forth your instructions for medical care that you desire in the future. If you would be suffering from a terminal illness or you would be permanently unconscious, like in a coma.
A living will is used only when you can’t communicate. It addresses your desires for life support, such as ventilators and feeding tubes that are essentially prolonging your process of dying. Today the instructions set forth in a living will are frequently included in your health care power of attorney. For years living wills were separate documents.
But the new forms used in Pennsylvania now include both the living will and the health care power of attorney in one document authorizing your health care agent to make those decisions on behalf of the incapacitated person.
Brenda Ankley: Does it still set forth the individual’s wishes?
Matthew: Sure. It gives instructions to your agent at the time that you are incapacitated with regard to your desires for end of life health care. We typically look upon this as life support, that would keep you alive, but for the use of this life support, you probably would die of your condition within a short period of time.
Examples of this life support would typically be ventilators and feeding tubes. So these are instructions given ahead of time to your agent as to how you want to be treated in the event you cannot tell the doctor with regard to your health care desires.
Brenda Ankley: Do you have any words of wisdom for those that are aging or those caring for the aging when it comes to protecting their assets, or their interests, or just estate planning in general?
Matthew: Well, procrastination is your enemy. If someone waits until an illness progresses, such as in Alzheimer’s disease, they may not be able to sign a power of attorney or change a will, since the person is now incapacitated and cannot understand the document.
Once there has been a diagnosis of an illness, one of the appointments you should make early on is with your elder law attorney to make sure that all of the documents are in place, and investigate all of your options with regard to asset protection.
Brenda Ankley: Is there anything else that you would like to add regarding elder law or the state of society that we’re in now as far as estate planning and aging is concerned?
Matthew: Elder law is an extremely rewarding profession. It is very challenging since we are dealing with many areas of the law from government programs, tax laws and estate planning issues. Elder law attorneys primarily serve to help families work through some very difficult and stressful times. At the end of the day we provide a positive benefit to our clients’ lives.