As Americans are living longer lives due to medical advances and better eating habits, one area of the law, Elder Law, has emerged to assist America’s aging population. Elder Law can be best defined as the umbrella under which every issue pertaining to the elderly and disabled falls. It is a broad area of law covering issues as wide ranging as health care and real estate. Its common practice areas include:
Estate Planning refers to the process of making plans to transfer your assets after death. Your “estate” is defined as all of the property- real estate, bank accounts, stocks and other securities, and personal property- that you own. Estate Planning may involve the use of a will, trust, and powers of attorney. A will is a legal document that dictates how you would like your possessions to be distributed. With a will; however, assets will need to go through the state probate process, which can be costly and take up to a year or more to settle, before items may be distributed to heirs. A trust is a legal relationship in which an individual (grantor) grants one or more persons (trustees) the right to hold and distribute the individual’s property to persons the individual designates (beneficiaries). Unlike a will, a trust does not go through the probate process and may begin distributing property prior to the grantor’s death. An attorney-in-fact is an individual you select to act as your agent in the event you become incapacitated through a power of attorney.
Estate planning usually includes the creation of Advanced Directives. Examples include: Healthcare Representative, Health Insurance Portability and Accountability Act (HIPAA) Release of Healthcare Information Authorization, and Living Will.
Medicaid Planning & Litigation
Medicaid Planning refers to the strategic “rearranging” of assets in order to help an individual qualify for Medicaid. Medicaid Planning may be used to preserve an inheritance, enhance the quality of care for an institutionalized individual and/or protect a community spouse from impoverishment.
After the death of a Medicaid recipient, the estate of the deceased may find that a claim has been made against it. This is because federal law requires states to recover amounts spent by Medicaid for long-term care and related drug and hospital benefits. All assets in a Medicaid recipient’s probate estate are subject to recovery; except in instances where a surviving spouse, minor child, blind child, or disabled child is living or where recovery would cause undue hardship to the surviving heirs. The State of Indiana has up to nine (9) months after the Medicaid recipient’s death to file a claim to recover assets not included in the recipient’s probate estate. There is no time limit as to when the State may file a claim against a probated estate, so long as the probate estate is open. With proper Medicaid planning and the assistance of an Elder Law attorney, an individual may be able to mitigate any claim.
Veterans Pension Planning
Veterans as well as surviving spouses and dependent children of military personnel may be eligible for Veterans Pension Benefits including the Aid & Attendance Pension. In order for a senior to be eligible for VA Aid & Attendance Pension, an individual:
- Must have served at least 90 days active duty during a period of war (World War I, World War II, Korean Conflict, Vietnam Era and Persian Gulf War*)
- Not have been dishonorably discharged. AND
- Be age 65 or older
*There are certain additional requirements for Persian Gulf War Veterans
Special Needs Planning
Special Needs Planning allows the parent or caregiver of an individual unable to care for him or herself to ensure the individual is provided for life. “Special needs” refers to an individual with mental illness, someone who is paralyzed or an elderly individual with Alzheimer’s or dementia. Special Needs Planning consists of establishing guardianship, advance directives and setting up a trust. The most common types of trusts are Support Trusts (eliminate eligibility to receive public assistance benefits) and Special Needs Trusts (maintain eligibility to receive public assistance benefits). The two types of Special Needs Trusts are Third-Party and Self-Settled. An experienced Elder Law Attorney can help a parent or caregiver determine how best to provide for a special needs person.
An individual has the right to a Medicare appeal if his Medicare, Medicare health plan or Medicare drug plan denies a request for health care services or other supplies he thinks he should be able to receive; denies a request for payment for health care services or other supplies he has already received; or denies a request to change the amount he must pay for health care services or other supplies. The appeals process has 5 levels. An Elder Law attorney can assist you with the appeals process.
Elder Abuse refers to intentional or negligent acts that cause harm or could cause harm to a vulnerable adult. Abuse can take many forms: physical, sexual, emotional, financial, and neglect. Physical abuse may manifest itself in the appearance of bruises from being hit or physically restrained. Sexual abuse is non-consensual sexual contact of any kind made toward a senior. Emotional abuse refers to verbal and non-verbal acts meant to humiliate, frighten, or intimidate a senior. Financial abuse may come in the form of an individual making unauthorized withdrawals from a senior’s bank account or demanding payment for services not performed. Neglect refers to the failure of a caregiver or family member to provide adequate food, shelter, health care, etc. to the senior in their care.
Nursing Home Negligence
When an individual places a loved one in a nursing home, it is under the assumption that their loved one will be in a safe environment receiving adequate care. However, this is not always the case. Nursing home negligence can take many forms: personal hygiene neglect (not receiving assistance with bathing and grooming); basic needs neglect (dehydration and malnutrition); medical neglect (skimping on treatments or failure to treat bed sores in a timely manner); and emotional neglect.
Social Security Disability
Social Security Benefits are available to individuals who cannot work due to a medical condition that is expected to last at least one year or result in death. In order to qualify, an individual must meet a “recent work” test (based on age at time of disability) and a “duration of work” test (to ensure you worked long enough to qualify for social security disability). Benefits are paid through two programs: Social Security Disability Insurance program and Supplemental Security Income program.
Guardianship and Conservatorship
Guardianship is a legal relationship that gives one or more individuals or organizations the responsibility of providing food, health care, housing, and other necessities to a legally incapacitated person. A legally incapacitated person refers to an individual the court has deemed unable to take care of his or her own basic needs. This inability may be due to mental and/or physical deficiency, disability, illness or drug usage. Guardianship is appointed through the probate court in the jurisdiction the legally incapacitated person resides. Conservatorship is a legal right given to an individual to be responsible for the assets and finances of a person deemed incapable of managing them on his own. Conservatorship is also appointed through the probate court in the jurisdiction the legally incapacitated person resides. The same individual can be the guardian of the person and the conservator of his or her property or they can be separate individuals.
Dillman & Associates https://www.dillmanlawoffice.com assists clients with Medicaid Planning and Applications, Veterans Benefits Planning, Special Needs Planning, Guardianships, Estate Planning for Estates of any size, Probate Litigation and Probate Administration. We would love the opportunity to assist you or a loved one with planning needs.