Elder Law
Elder law involves all matters relating to the legal issues that particularly affect older members of the population including financing long-term care and Medicaid eligibility, Guardianships, Advanced Health Care Directives (Living Wills), employment rights of older persons, and nursing home abuse.
FINANCING LONG TERM CARE AND MEDICAID ELIGIBILITY
There have been major advances in the care and treatment of the aging population with the result that many senior are living longer more productive lives. However, it also means that a growing number of seniors are spending their final years in assisted living facilities or long term care facilities such as nursing homes.
While these facilities can provide the care that these seniors require, this care comes at a cost. The average cost of nursing home care in Northern New Jersey is approaching $7,000 to $8,000 per month. These costs can easily wipe out the life savings of a senior in only a few years. Only after the life savings of a senior are exhausted will Medicaid step in to provide funding.
However, through the use of gifting and life-time transfers and other sheltering techniques, it is often possible to preserve some of the assets of the senior entering a long term care facility for their family.
Three Year Look-Back
Many seniors and families confronting the prospect of long term care are often hesitant to explore asset sheltering options because they have heard of the three (3) year look back window. These seniors and families are under the impression that it is impossible or illegal to transfer assets three years prior to applying for Medicaid benefits. This is a fallacy. In some cases it is often possible to transfer assets only two or three months prior to applying for Medicaid benefits.
Though it is less well known, there is a five (5) year look back period if an applicant should transfer assets into a Trust account prior to applying for Medicaid benefits. Additionally, Medicaid is considering the possibility of imposing a five year look back for the transfer of property prior to applying for Medicaid benefits.
Proper Planning
The rules involving the transfer of assets prior to applying for Medicaid benefits are very complicated, and if the transfers are performed improperly it is possible to have increased periods of ineligibility. Therefore, it is important to consult an Elder Attorney to determine the optimum strategy for sheltering assets.
GUARDIANSHIP
A Guardianship is a court proceeding in which the Court appoints a person to care for someone who is no longer able to handle their own affairs. A Guardian is responsible for the care of their ward and for monitoring the financial affairs of their ward.
Guardianships are often required when a person can no longer handle the day to day requirements of providing for their financial well being in today’s society and the person has not properly executed a Power of Attorney. When this occurs no one is able to access the person’s assets to arrange for payments of their debts, or to cash and deposit retirement checks.
In addition to problems with the person’s finances, unless a Guardian is appointed it is sometimes impossible for someone to be admitted to a nursing home to receive the care they need.
To obtain a Guardianship, one must obtain certifications from two physicians indicating that the person is no longer able to care for themselves. Once these certifications have been obtained, an Order to Show Cause must be filed with the Court, and a proceeding must be held for the Court to determine if a guardianship is appropriate. If the Order has been properly filed and the Court finds their is cause for the action, an Attorney will be appointed to represent the senior. A Court hearing will be held, and if sufficient evidence is presented, the Court will issue a ruling finding the person incapacitated and will appoint a Guardian.
ADVANCED HEALTH CARE DIRECTIVE
The Advanced Health Care Directive, also known as a “Living Will”, is a written document which provides direction for your care to your health care provider and health care representative if you are no longer able to make your wishes known. The Advance Health Care Directive is a way in which you continue to control your care.
Karen Ann Quinlan and Terri Schiavo are names that can send chills down everyone’s spine.
These are 2 women who met with unexpected tragedy, but what followed their tragic events was made more painful than anyone can imagine. Both of these women slipped into comas; their families then became divided as to what course of medical care should be given to their fallen loved one. Years of litigation ensued, hundreds of thousands of dollars were spent in the court system to determine what treatment should be given. All of that suffering, pain and money could have been avoided by a properly prepared and executed Advanced Health Care Directive.
The Living Will is a written document in which you state your wishes and instructions for health care. It orders your family, doctors and hospitals what you will and will not accept in the way of medical treatment, including life support, if you are in a condition in which you cannot express yourself. It includes specific advance directions regarding life-prolonging treatments and the instances in which you would or would not wish to have such treatments carried out. This directive goes hand-in-hand with a durable power of attorney.
NURSING HOME ABUSE
Those professionals who work at and run nursing homes have the daunting task of providing the care that many of our most vulnerable senior need. However, because of improper training, lack of equipment and supplies, or because of staff shortages, our most vulnerable seniors do not receive the care that they deserve or require, or are sometimes the victim of abuse.
When this happens, often the only way to obtain any compensation for these seniors is through the court system. If a senior is neglected or abused in a nursing home or assisted living facility a cause of action can be brought against the facility.
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