Elder Law

Elder Law encompasses many different fields of law. Some examples are:

Ø Preservation/transfer of assets seeking to avoid spousal

impoverishment when a spouse enters a nursing home;

Ø Disability claims and appeals;

Ø Disability planning, including use of powers of attorney,

living trusts, living wills, and health care decisions;

Ø Guardianships;

Ø Estate planning;

Ø Long-term care placements in nursing home and life care

communities;

Ø Nursing home issues including questions of patients' rights and nursing home quality;

Ø Elder abuse and fraud recovery cases;

Ø Housing issues;

Ø Age discrimination in employment; and

Ø Retirement benefits, survivor benefits and pension benefits.

The Need for Planning

Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate, whether for your spouse or for your children. This can be done by purchasing long-term care insurance or by making sure you receive the benefits to which you are entitled under the Medicare and Medicaid programs. Veterans may also seek benefits from the Veterans Administration.

Living Wills

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up a living will. A living will takes effect only upon a person's incapacity. An individual can always revoke a living will at a later date if he or she wishes to do so.

Also, do not confuse a living will with a "do not resuscitate" order (DNR). A DNR says that if you are having a medical emergency such as a heart attack or stroke, medical professionals may not try to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state.

Health Care Power of Attorney

A health care power of attorney allows an individual to appoint someone else to act as their agent for medical decisions. The health care power of attorney is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions.

A health care power of attorney takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. If the principal later becomes able to express his or her own wishes, he or she will be listened to and the health care power of attorney will have no effect.

Medicare

All retirees who receive Social Security benefits also receive Medicare as their health insurance. Medicare is an "entitlement" program. Medicare Part A covers up to 100 days of "skilled nursing" care per spell of illness. However, the definition of "skilled nursing" and the other conditions for obtaining this coverage are quite stringent, meaning that few nursing home residents receive the full 100 days of coverage. As a result, Medicare pays for only about 9 percent of nursing home care in the United States.

Medicaid

Lacking access to alternatives such as paying privately or being covered by a long-term care insurance policy, most people pay out of their own pockets for long-term care until they become eligible for Medicaid. Medicaid is a form of welfare. To be eligible for Medicaid, you must become "impoverished" under the program's guidelines.

Congress has established a period of ineligibility for Medicaid for those who transfer assets. For transfers made prior to February 8, 2006, state Medicaid officials will look only at transfers made within the 36 months prior to the Medicaid application (or 60 months if the transfer was made to or from certain kinds of trusts). But for transfers made after February 8, 2006, the "look back" period for all transfers is 60 months.

While the look back period determines what transfers will be penalties, the length of the penalty depends on the amount transferred. The penalty period is determined by dividing the amount transferred by the average monthly cost of nursing home care. For instance, if the nursing home resident transferred $100,000 and the average monthly cost of care was $5,000, the penalty period would be 20 months ($100,000/$5,000 = 20).