October 26, 2011
One of the inevitable issues facing senior citizens is how to protect their possessions and make sound legal decisions as they navigate through planning the later stages of life. Caregivers also have to be well informed as to legal issues when they are helping parents, grandparents or other loved ones plan for long term care or make decisions about simple estate planning. The following are some helpful legal tips when facing a situation dealing with elder law.
Choosing a Nursing Home or Care Facility
- Review admissions agreements carefully. Beware of clauses in which you personally guarantee payment for a loved one’s care.
- Do not sign any agreement that contains a waiver in which you agree to submit to arbitration and waive your right to a jury trial in the event that you or a loved one are injured while in the facility’s care.
- Go to the facility and tour the premises. Do not make any decision sight unseen.
- Take any admissions agreement to an attorney and have him/her review it prior to placing a loved one in the facility. When in doubt, it never hurts to have a second pair of eyes review any document.
Power of Attorney
- A Power of Attorney is a very powerful document which can be easily abused. It gives someone the power to act on your behalf. This means that he/she has the right to enter into transactions and contracts, and purchase and dispose of property at their sole discretion.
- Powers of Attorney can be as specific or as general as you need them to be and can include clauses which require a third party to review and/or give his/her consent before any major financial or legal transactions take place.
- If a Power of Attorney is being abused, it can be revoked. A document will need to be drafted in which the power is revoked, and then that document must be given to anyone with whom the person holding the power originally has dealt.
Qualifying For Benefits
- Public assistance programs such as Medicaid and Medicare will allow you to receive benefits while you are in a nursing home and still allow you to keep a home to return to when your stay there ends. When you apply for benefits prior to a nursing home stay, simply check the box on the application that says “I intend to return home.”
- There are many assets that the government cannot consider, such as your home and your spouse’s 401K and retirement benefits.
- Don’t assume that giving things away will prevent the state from having any asset to go after when you’re gone, or that you must give everything away to be “low income enough” to qualify for benefits. The government has a “look back” period, which means they will look back over the past five years to see what assets you have gotten rid of in order to qualify for benefits
- Any action you take may have drastically different consequences than those you intended. Always run any decision by an attorney first.
Making Out a Will, Living Will or Health Care Advance Directive
- In the eyes of the law a person’s property and assets are his/her own and he/she can do with them as he/she wishes. Neither a spouse nor a child is entitled to inherit all or a specific share of an estate when someone dies. A parent CAN disinherit a child. In addition, a will can be changed up until the time of death.
- Many people are under the assumption that since they have limited assets or a small number of beneficiaries (people who stand to benefit once you die) that they really don't need a will. THAT IS NOT TRUE. Anyone who owns a home, has money in the bank, or has children should have a will. Once you've passed away there is nothing you can do to make sure your wishes are adhered to. It's essential to have a written will to make sure these plans are carried out.
A Living Will and Health Care Advance Directive are documents in which you specifically state your wishes with respect to receiving life-saving or life-sustaining treatment. These can be very specific with respect to the treatment you are accepting or refusing - for example, breathing assistance or feeding tubes. Keep in mind that even if you have a living will, it is essential that the person you appoint as your power of attorney has a copy of your living will.
If you need a referral for an attorney, contact the Allegheny County Bar Association Lawyer Referral Service at 412-261-5555.