Elder Law

Elder Law is a relatively new specialized field of law that deals with the issues faced by the fastest growing segment of the US population, the elderly. It combines elements of Estate Planning, Wills and Trusts, Conservatorship, Health Care Planning and Medicare/Medicaid Planning.

If a person has truly lost mental competence, and is unable to exercise rational control over his or her property, the courts may appoint a “conservator” in a “conservatorship” proceeding.

Just because someone is acting a bit eccentric is not likely to be sufficient to justify the appointment of a conservator. The courts are likely to respect a person’s wishes to control his or her own affairs unless convinced that the person really needs to be protected against him or herself.

A very careful determination of mental capacity must be made, and this typically involves at least one physician, often a psychiatrist, and a lawyer familiar with elder law matters.

Jurisdiction of the court in a conservatorship continues while the incapacity exists but ends at death. The conservator has to make periodic reports to the court and petition the court for additional authority under certain circumstances.

Typically a conservatorship allows the conservator to be paid for his or her services. The conservator is also entitled to attorney fees to seek legal advice. In addition, the court will require a conservator to purchase a type of insurance policy known as a “surety bond” to protect the conservatorship estate. The costs and expenses of a conservatorship are paid from the property of the person.

An estate plan uses several tools which can prevent the court from gaining jurisdiction over your affairs.

A Living Will or Directive to Physicians is used to determine if artificial life support systems are to be used or withheld.

A Durable Power of Attorney for Health Care is used to provide authority to a person, in whom you have the utmost trust and confidence, to make decisions regarding health care treatment when you are unable to provide informed consent.

A Durable Power of Attorney for Property enables you to authorize a person to act in your place and stead in the event of your incapacity; this attorney-in-fact can manage your financial affairs without the need to have intervention by the courts.

A Trust or Family Limited Partnership is used to hold property; the Trustees or Partners manage the property held by either of these entities. Both the Trust and the Family Limited Partnership continue to manage the property even if you are incapacitated.

Thus, a properly prepared estate plan can enable you to avoid a Conservatorship proceeding over your estate. Compared to the cost of a Conservatorship proceeding, an estate plan can be very attractive.

Some people simply are not able to manage their own financial affairs. For these people, there are a number of courses of action, depending on the mental state of the person and the laws of the home state. A popular choice is to obtain a power of attorney, which is a notarized, revocable document allowing you to handle a specific matter or a wider range of affairs. It can involve one or more than one person, but if they are required to act together, getting consensus on how to handle your affairs will, undoubtedly, prove to be irritating and infuriating at times.

They are three types of power of attorney: (1) a durable power of attorney that remains in effect during incompetence or other disability; (2) a standby power of attorney that is triggered when there is an incapacity to manage affairs; and (3) a temporary power of attorney that generally applies only if an emergency arises.

A Guardianship may also be used. The guardian, a relative, friend, or heir, can be appointed by the court to handle your affairs and well-being.

There are very strict laws, with criminal penalties, designed to prevent people from giving their property away at the last moment, or even within a few years of the time that they enter a nursing home, if the result is that the Government will be expected to pay the costs of nursing home or other care, rather than the person himself from his or her assets.

If you anticipate that you may have to enter a nursing home down the road, an elder care attorney may be able to help you create a plan that will both protect much of your assets and make you eligible for Government benefits.

Yes, if you are in full command of your senses and understand the pros and cons of treatment. You call the shots – not the doctor, even if by refusing treatment you may die or put your life in a threatening condition.

Yes. But despite its popular name, a Living Will is not actually a Will at all. A Living Will is a document spelling out what kind of medical care a person wants in the event of terminal illness and incapacity to communicate one’s wishes. A Living Will can also spell out the kinds of treatment a person does want or does not want in any circumstances. Any competent adult can make a Living Will.

The requirements for Living Wills vary from state-to-state. For example, some require witnessing, a standard form of document, or an acknowledgment before a notary. Others are more lenient.

We strongly recommend having a Living Will drawn by an attorney if a Living Will is an viable (and crucial) option. Careful drafting is important. Language, such as “Pull the plug if life is not worth it”, is not particularly clear and not recommended.

A Living Trust is VERY DIFFERENT from a Living Will. A Living Trust is a way to manage and control property during your lifetime and to distribute it at your death. See our section on Estate Planning.

We recommend both. Some states approve one kind over the other; some health care providers are more comfortable with one type of document than another. But whatever document is elected, make sure that it is consistent, describes treatment choices in a variety of situations, and names someone (called a “proxy”) to make decisions for you, should you be unable to make decisions for yourself.

If you have not planned ahead, the decision-making power passes to a family member or relative, sometimes a close friend, the attending doctor, or a court-appointed guardian. With medical technology advancing at a dizzying pace, should you not have had your wishes made known to someone, someone will “step into your shoes” and make that crucial decision during life-and-death situations or when you are not competent to make the “call”.

No.

Fill out a Uniform Donor Card and put it in your wallet. Also make sure you communicate your wishes to your close family members and friends.

Generally speaking, the Uniform Anatomical Gift Act, which all states have adopted with some variation, provides that they would go to another institution or person, factoring in need, biological match, and geographic proximity.

Yes. While it might be possible for one’s next of kin to do so even if the deceased has not completed a Uniform Donor Card, very often relatives are unsure about a person’s wishes, or the one on the scene may be afraid to make a decision without consultation with all the others (and that sometimes takes too long). That is why it is so important to tell everyone — ideally in writing — that you want to donate your organs.

Elder abuse may be domestic or institutional. Domestic elder abuse refers to maltreatment of an older person residing in his/her own home or the home of a caregiver. Institutional abuse refers to the maltreatment of an older person residing in a residential facility for older persons, e.g., a nursing home, board and care home, foster home, or group home.

The four common kinds of elder abuse are:

(1) physical abuse, the infliction of physical pain or injury, e.g., slapping, bruising, sexually molesting, restraining;

(2) psychological abuse, the infliction of mental anguish, e.g., humiliating, intimidating, threatening;

(3) financial abuse, the improper or illegal use of the resources of an older person, without his/her consent, for someone else’s benefit; and

(4) neglect, failure to fulfill a care taking obligation to provide goods or services, e.g., abandonment, denial of food or health-related services.

All states provide laws prohibiting elder abuse, and most have state agencies, such as adult protective services, to help achieve compliance with those laws. Some states operate hotlines 24 hours a day, 7 days a week. Criminal and financial penalties can generally provided.

An attorney who is a veteran in elder law can guide you through the potpourri of housing options -which come in all sizes, settings, and shapes – on the market for seniors and the ones that are best suited for your mother. (A very helpful article posing questions to be considered in choosing a facility is at Nursing Home Guidelines) Briefly, housing options generally fall into three categories, based on level of services and/or care provided:

(1 ) Independent Living Retirement Communities: These complexes are for seniors who are able to live on their own, but want the convenience of a comprehensive service package. Meals, housekeeping, activities, transportation and security are provided to active older adults.

(2) “Assisted Living” Facilities: In addition to the services mentioned above, these facilities provide personal care assistance to residents. This means that, in addition to housekeeping services, residents receive assistance in managing their medications. and a helping hand with bathing, grooming and dressing. Settings can range from three or more older people in a homelike setting, to dozens of residents in an institutional environment.

(3) Nursing homes: Nursing homes offer continuous round-the clock nursing care as well as other support services in a single setting. Nursing homes are certified to provide different levels of nursing and medical services, from custodial to skilled nursing (services that can only be administered by a trained professional).

Other options are continuing care retirement communities (also called Life Care Communities), group homes, share housing, adult foster care, home and community care, and elder cottage housing (commonly known as ECHO housing).

With the media assault on nursing homes and oft-told tales of patient neglect, nursing homes became subject to stringent federal standards with the passage of the Nursing Home Reform Act (NHRA) of 1987. The law covers many aspects of resident care and rights, staffing, the quality of care, restraints, privacy, and record keeping. The law applies to all the various types of nursing homes who receive funds under Medicaid or Medicare programs.

In addition to federal law, states have enacted their own statutes on nursing home care and services, some a beefed-up version of the federal law. Typically, the state laws require a nursing home to be licensed in order to operate, annual inspection, a procedure for handling complaints, prohibition on discrimination, sanctions for violation, licensure suspension and revocation. Any reports of alleged abuse or violations are investigated by the state regulatory agency. Click here for an article regarding abuses in nursing homes.

There is a slew of playing fields to voice grievances and complaints.

First and foremost, make yourself heard by speaking directly with the nursing home management itself. Each nursing home is required by law to have in place a formal complaint or grievance system to deal with resident’s issues. The procedure should make it easy and comfortable for a resident to air his or her complaint. The nursing homes must follow up on the complaint quickly and make an effort to correct the problem(s).

If the grievance mechanism does not resolve the issue, both federal and state law have created a “watchdog” advocate program for nursing home residents, called the “long-term-care ombudsmen”. The Ombudsman Program, whose genesis is in the Older Americans Act of 1978, assists residents of long-term care facilities, their families and friends, to voice concerns and correct conditions that affect the quality of their care. If they are unable to resolve a problem, they will direct you to who can.

Still frustrated, you can also complain to the state regulatory agency that governs nursing homes and residents. The agency will investigate the complaint and impose sanctions if there are violations.

If you reach an impasse at that level or are hobbled by the sludge of recalcitrant bureaucracy, you can take private legal action in state court.

While many defendants try to deny liability for their actions, or blame the other party, this pattern is the rule when an injury occurs in most nursing homes.

It is very important, as soon as an injury occurs, to start to gather the facts as you are unlikely to get much cooperation from the senior management of the nursing home and people start to change their stories if they fear being involved in a lawsuit or investigation.

Because of the vulnerability of their residents, widespread patterns of abuse, and the fact that Federal tax dollars are used to pay for a large percentage of nursing home stays, the nursing home industry is very heavily regulated. Federal law requires that nursing homes have to:

(1) Develop comprehensive care plans for each resident,

(2) Conduct an initial assessment of each resident’s functional capacity,

(3) Update the assessment periodically,

(4) Prevent the deterioration of each resident’s ability to bathe, dress, groom, transfer, ambulate, toilet, eat, and talk or otherwise communicate,

(5) Avoid bed sores and treat those that develop,

(6) Have sufficient nursing staff to maintain the highest practical level of physical, mental and psycho-social well being, and

(7) Ensure adequate nutrition.

Many states have additional laws that impose additional requirements.

One of the first places to start is with the patient’s chart. Ask for a copy immediately and try to get it while you are there. If the home receives Federal funds it must provide the records within 2 days, but getting it immediately lessens the chances that it will be “altered”. Cases are legion where staff members at the nursing home, fearing they may be criticized, or there may be litigation, make changes in the chart to exonerate themselves. If you can get a copy right away, that problem is lessened.

Witnesses to abuse may be guilt ridden that they allowed a loved one to go to a place that treated them so poorly. They may be family members of the injured person, or of other residents in the home. They probably spoke to staff members, and may have been told what the staff member saw or did, or a sympathetic staff member may have confided in them what she saw or what another staff member said had happened. They should immediately be asked to write down what they were told, by whom, and when, before their memories start to fade.

Similarly the injured person should be asked to state his version of what happened and what was done about it. Who said what to him or her?

Photos of the actual injuries, and of the place where the accident occurred, should be taken right away, before the injury starts to heal, or the home makes changes that it should have made much earlier which might have prevented the accident or injury.

Former nursing home employees, or temporary staff, may be able to assist you, and their interests are less intertwined with these of the management of the home. They can be a goldmine of information. Even if they may not have been there to see the particular incident, they know how the patient had been treated (or neglected), what really happens in the home when visitors are not there, and can share other stories of similar incidents that may help demonstrate a pattern of carelessness or abuse.

Much of the lawyer’s assessment of the merits of the case will be based on the history of violations by the particular nursing home, and if it is (like most) part of a national or regional chain, that of its parent company and affiliates.

That largely will depend on whether the fall was an unavoidable, isolated incident, or instead was the result of a failure of the nursing home to comply with legally required levels of care. If the fall is the result of a long term pattern of substandard care, it could give rise to a significant claim.

All nursing homes have the obligation to properly assess the health and needs of each resident and to implement and follow a care plan. They prepare a “minimum data set” on entry, and develop a care plan which should, among other things, prevent likely falls. The plan may involve use of safety devices, such as bed alarms, to show if a resident needing assistance is trying to get out of bed without help, and a toileting program, etc. In addition the nursing home has to be adequately staffed.

Failure to regularly reassess the needs of the resident and modify the care plan or to adhere to the processes a care plan should prescribe, is negligence and the basis for a suit. In addition, the nursing home has a contractual duty to provide safe and reasonable care to its residents in exchange for the payment to the nursing home. There may be other bases for a claim, or recovery, under state adult protection laws.

Where there is a clear need for a fall prevention program or nursing interventions, and no action was taken, it may mean (1) the home failed to pay attention to the needs of the resident, (2) the staff was not properly trained to deal with the resident’s needs, (3) there was not enough staff to properly assess the resident and implement a care plan, and/or (4) the home lacked the proper equipment to provide for this resident’s safety. On the other hand, if the home improperly restrained the resident, to prevent the resident from getting up (some homes do so because it is easier for them), and he was injured in trying to “escape”, the home also might be liable. Total restraints, under Federal law, may be used only as a last-resort actions.

Nursing homes will typically try to explain the fall away by blaming the patient. If he fell while getting to the bathroom, they will say he failed to use the call light or wait for assistance. However, if the equipment was not working, or such calls routinely went unanswered because of understaffing or otherwise, that does not absolve the home. If they claim the staff warned the person about not getting up alone, that does not take away the home’s duty to have adequate safety devices. And if the resident has Alzheimer’s or other mental lapses, giving him warning instructions that he can not remember will not cut it. Although “accidents happen”, and a nursing home can not prevent every fall, it does have the legal and moral duty to take all reasonable actions to prevent them from happening, and will be liable for failing to do so.

To determine if there is a claim in your father’s case you should talk with an attorney. There should not be any charge for the initial consultation, and if the lawyer takes the case he or she typically handles it on a contingency fee basis.

It will be very helpful if you get a copy of the resident’s entire chart from the nursing home. Under Federal regulations a copy of the chart must be provided promptly (often 2 business days) to a relative. In addition, you may want to file a complaint with the State Health Department as that will generate an inquiry that may shed some light on how the accident happened.

While advanced age and poor health of the injured person often would limit the likely recovery if your father is treated as a routine slip and fall case, a pattern of incidents and violations at the nursing home, and failure of the nursing home to adopt corrective recommendations, would make it more likely that there will be a good case and that your father, or his estate, will have a substantial recovery. And do not think that yours is an isolated case. A 1997 Time magazine article reported that nearly 35,000 elderly patients in nursing homes die or endure serious injury or pain each year because of neglect in nursing homes.

You can sue on a number of legal grounds, such as fraud, neglect, financial irregularities, failure to provide adequate care, breach of contract, pain and suffering, mental anguish, or failure to comply with state nursing home statutes. (Click here for an article on abuses in nursing homes.) In March 1998, the nation’s biggest nursing-home company received national publicity when it was jolted by a $95.1 million award in damages for fraud, negligence and abuse.

The only type of “nursing home” care Medicare helps pay for is skilled nursing facility care. Medicare does not pay for custodial care when this is the only kind of care your mother or father need. Custodial care is primarily for the purpose of helping your mother or father with daily living or meeting personal needs such as walking, dressing and eating, etc. His or her condition must require daily skilled nursing or skilled rehabilitation services which can only be provided in a skilled nursing facility. The skilled care she receives must be based on a doctor’s orders.

Medicare Part A can help pay for certain inpatient care in a Medicare certified skilled nursing facility following a hospital stay of at least three days in a row, not counting the day of discharge.

Custodial care in a nursing home may be covered by Medicaid if the individual meets the specific state income and resource requirements for Medicaid assistance.

You may deduct qualified medical expenses you pay for yourself, your spouse, and your dependents, including a person you claim as a dependent under a Multiple Support Agreement. You can also deduct medical expenses you paid for someone who would have qualified as your dependent except that the person did not meet the gross income or joint return test.

Nursing home expenses are allowable as medical expenses in certain instances. If you, your spouse, or your dependent is in a nursing home or home for the aged, and the primary reason for being there is for medical care, the entire cost, including meals and lodging, is a medical expense. If the individual is in the home mainly for personal reasons, then only the cost of the actual medical care is a medical expense, and the cost of the meals and lodging is not deductible.

You must itemize deductions on Schedule A, Form 1040, to claim a medical expense deduction. You can include only the medical expense paid during the year, regardless of when the services were provided.

You cannot be committed to an institution against your will (except temporarily in an emergency) unless a court authorizes the commitment after a hearing. At the hearing, the court must determine that you are mentally ill and either unable to care for yourself or a danger to yourself or others. You have the right to be represented by an attorney at the hearing. If you cannot afford an attorney, the court must appoint one. If you sign a document waiving your rights to a hearing and to an attorney, you can apply to the court at any time to have those rights reinstated.

Legally, a nursing home resident cannot be moved unless he or she:
endangers the safety or health of other individuals,
has medical needs that no longer can be met by the facility,
has recovered his or her health significantly that care is no longer necessary,
has failed to pay for services, or the facility closes.
There are other circumstances that result in the involuntary or abrupt moving of a resident, such as loss of certification, or strike by its staff. In these cases, ordinarily special arrangements are made to transfer the residents to other housing accommodations.
If there is a planned transfer, the residents must be given 30-days written notice, the reason(s) for the move, and the mechanism for challenging the proposed move. Hearing procedures differ from state-to-state.

If Aunt Maggie is to be moved against her will, don’t fret. She has the right to legally appeal the decision through legal service programs established by the state. She may also solicit the services of an ombudsman to mediate the dispute or hire an lawyer who is a specialist in the legal issues of older Americans.

No. Children have no legal obligation to pay for their parents’ care.

Mandatory retirement is outlawed under the 1967 Age Discrimination in Employment Act. (See our section on Job Description for further details.) Workers over 40 are protected if working in a business with more than 20 employees. (However, those under 40 years of age, or who work for smaller employers often are protected by state law.) In fact, a March,1998 three-judge appellate panel decision out of New York held that for purposes of the 20-or more rule, the non-U.S. overseas employees of a foreign corporation may be counted in determining whether or not the foreign company, which had fewer than 20 U.S. employees, was large enough to be subject to the Age Discrimination in Employment Act.

Your boss can offer older workers a voluntary retirement package without violating ADEA. Typically, should you accept the package, you will be asked to sign a waiver of your right to sue under the ADEA.

If you believe that you have been illegally discriminated against based on your age, file a complaint with the Equal Employment Opportunity Commission (EEOC, for short) within a certain time frame. You can mail the complaint, call the EEOC toll free at 1-800-669-EEOC or 800-669-6820 or drop in at the EEOC local offices in person. More information on filing a complaint can be located on-line at the EEOC’s Internet address at: http://www.eeoc.gov. (See also our section on Job Description for more details.)

Also, file a copy of the complaint with your local state office of civil rights. Be prepared to document your allegation.

The EEOC will investigate and attempt to resolve the problem informally. The EEOC will file suit against the employer, but, due to budgetary constraints, lawsuits are filed in only a very small number of cases. Individuals, however, can sue independently if the EEOC has not filed its own lawsuit.

It depends on the provisions in your plan. If your plan is a defined benefit plan, you may not be able to start receiving benefits until age 65. Many plans, however, provide for payment of pension benefits at an earlier age (although they frequently reduce amount of the monthly benefit to reflect the fact that you would start receiving the benefits sooner). Even if you are able to take early retirement, it often pays to consult a tax lawyer and a highly qualified financial advisor to assess all the implications of early retirement.

The number one issue facing older Americans is health considerations. Since most of us do not have a personal, on-site, physician, we work with the federal Social Security and Medicare systems. Whether you are entitled to benefits depends on if your circumstances and if you satisfy the system’s requirements.

In the Medicare program, people who are receiving full retirement benefits, those who have attained age 65 with reduced benefits and those who qualify for social security disability benefits are eligible for Medicare.

Do not confuse Medicare with Medicaid, which is the health insurance system, run by the state, for those people with low income and limited assets.

Yes. Medicare pays first in all situations unless you (or your spouse) are currently employed and covered by an employer group health plan. In this situation, there will be no surcharge if Medicare is refused until employment ceases. If you are not working, whether your employer provides benefits or not, Medicare is primary and you should enroll. If you refuse Medicare at age 65 and again don’t accept Medicare when you retire you will risk a premium surcharge and possibly a delay in receiving Medicare benefits. See our section on Social Security Law for more details.

Your Social Security benefits – paid by a tax on you and matched by your employer – supplements other income you have through pension plans, savings, investments, etc. Social Security benefits are based upon your earning averaged over your working lifetime. A formula is used to determine the amount of your benefit – as a rule of thumb, about 42% of your earnings is replaced by social security benefits. See our section on Social Security Law for further details.

Supplemental Security Income – typically referred to as “SSI” – provides payments to people with low incomes and few assets. To qualify, you must:

(1) be living in the United States (or the Northern Mariana Islands)

(2) be a citizen of the United States or be legally living in the United States

(3) be age 65 or older, or blind, or disabled.

The base income level to be eligible for SSI depends on whether or not you work and where you live (some states have higher SSI rates and higher income limits than the national standard). The basic asset test is $2,000 for an individual or $3,000 for a married couple – although not all property owned is included – the primary residence and many personal belongings are exempt.

A reverse mortgage is a special type of private home loan that lets homeowners convert the equity in a home into cash. While we are all familiar with the monthly payment formats of conventional mortgages, the reverse mortgage, in contrast, allows eligible homeowners (typically those 62 years of age or older) to borrow against the value of their home. The equity built up over years is paid by the lender in a stream of payments (or possibly in a lump sum). Unlike a traditional home equity loan or second mortgage, no repayment is due, under most plans, until the home is no longer used as a principal residence, a sale of the home, or death.

This is one of the uglier scenarios that gets play out with regularity. Your sister may be trying to take over all your mother’s property before she dies, but you should also wonder if she is taking good care of her in the meanwhile. The familiar pattern is to seize control of the elder and her finances; get a power of attorney; transfer property to the abuser’s name; and above all, keep other children and caring relatives away so they don’t discover what’s going on. Try to find out how your mother is being “cared for,” what attorney has written her will, and where the will is. Is your mother in possession of all her faculties? For a variety of reasons, you might consider a conservatorship to protect both her person and her property. See a probate lawyer promptly.

Finding life insurance policies or annuities outstanding is not always easy, as there is no “central registry” and some policies are paid-up and did not require ongoing payments.

Here are some techniques to use:

1. Go through all the papers of the deceased to see if the actual policy, or any forms or correspondence related to an insurance policy or annuity turns up.

2. Go through the checkbook of the deceased for as many years back as possible looking for premium payments made to an insurance company.

3. If the deceased was employed, inquire at the firm about any Group Life Insurance that it carried for the deceased. Many larger employers provide paid up group life to retirees.

4. Did the deceased belong to any association or clubs or fraternal organization that may have sponsored or otherwise provided life insurance programs? For example, such diverse organizations as AARP, Knights of Columbus, Rotary, Lutheran Brotherhood, etc. try to market insurance to members. Contact the organization and ask what companies they sponsored.

5. Ask friends and neighbors if the deceased ever mentioned life insurance, or an insurance agent, and if so what company or agent.

6. If you have any lead or clue, write to the home office of the insurance company with as much information as possible, including the name, date of birth, social security number, and all known past addresses.

7. If you find nothing, it may be worthwhile to write to the top 10 or 20 life insurance companies with the same information; the top 20 life companies (MetLife, Prudential, John Hancock, New York Life, Northwestern Mutual, Equitable, MassMutual, Transamerica, Allstate, State Farm, Mutual of Omaha, Guardian) wrote over 50% of all life insurance sold some years back when the policy likely would have been bought.