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Elder Law Associates Newsletter dated June 18, 2014
What do you feel are the most important legal documents upon which an elderly person with either mental or physical disabilities (or their caregiver) should focus?
The most important legal documents to have in place as one plans his/her estate and/or for long-term care needs are as follows:
- Durable Power of Attorney – This document will allow a person to designate another individual or individuals to manage their financial affairs in the event the individual is no longer able to do so him/herself. By making it durable, the powers conferred in the power of attorney survive the subsequent incapacity of the principal.
- Health Care Proxy/Surrogate – This health care advance directive allows a person to designate an agent or agents who can make any and all health care decisions, particularly with respect to nutrition and/or hydration, in the event the individual is unable to make those decisions for him/herself.
- Living Will – This is an end-of-life treatment document wherein a person can designate others to make end-of-life treatment decisions, such as whether to allow a person to be sustained on a ventilator, feeding tube, etc. It also would cover whether to allow the administration of experimental treatment, organ donation, etc.
- Pre-Need Guardian – This document allows a person to name who they would like to serve as their legal guardian should the appointment of a guardian become necessary.
- HIPAA – This document names individuals who can access otherwise confidential medical records and information for the patient, notwithstanding the requirement that health care providers must keep such information confidential under the so-called HIPAA law.
- Last Will and Testament – This document controls the disposition of one’s assets at death. It is sometimes used in conjunction with a revocable trust, which can facilitate asset management during incapacity and avoid probate upon death.
Is it important for the elderly to use the services of an elder law attorney rather than a general counsel, and if so, what additional services can a specialist provide?
An Elder Law attorney can assist in a wide variety of areas that a general practitioner would not possess the requisite experience. These would include planning for long-term care, accessing government benefits such as Medicare, Medicaid, programs under the Social Security Administration and Veterans Benefits, drafting documents specifically tailored to the needs of the elderly and persons with disabilities, assisting clients with placement in an assisted living facility or nursing home, guardianship, and Elder Law litigation.
What types of public policy issues are currently in the forefront regarding issues facing people as they age and have special needs?
Accessing the type of care that a person needs in the setting most appropriate and desired by the elderly is perhaps the single largest public policy issue that people face as they age. Long-term services and supports in the community are not readily available to most people other than on a private pay basis, which many cannot afford for any extended period of time. Government benefit programs are lacking in that many of the programs do not pay for community-based care, forcing them into nursing homes. This is known as the institutional bias in our long-term care system.
The NAELA Foundation awarded its 1st litigation grant of $5,000 to Neighborhood Legal Services, a provider of free civil legal services to low-income and elderly residents of Essex County, MA. Is this an initiative you plan on continuing, and if so will you do this in the New York Metropolitan area?
The NAELA Foundation now has the funding it needs to become a meaningful source of funding for Elder Law and Special Needs Law litigation around the country. So far, two grants have been approved by the Foundation, and with steady funding expected to continue into the future, this initiative is expected to continue for the foreseeable future. Anyone can approach the NAELA Foundation to seek funding for litigation affecting the elderly and/or persons with disabilities, including those in the New York Metropolitan area.
What would you propose as a good legal plan for caregivers to have in place when commencing with the care of an elderly person?
Having the individual in need of care sign the documents referenced above in item 1 is a good place to start when thinking about a sound legal plan for caregivers to have in place when commencing care for an elderly person. It is also important to get everyone involved in the elderly person’s life on the same page with regard to the care plan, who will be responsible for the things that need to be carried out on behalf of the elderly individual, how frequently family members will visit, etc.
What are some of the most important questions for someone to ask an attorney when attempting to decide whom to engage for their legal needs?
Questions to ask an attorney are as follows:
- How long have you practiced Elder Law?
- What percentage of your practice is devoted to Elder Law?
- Have you published any articles on Elder Law?
- Are you involved with your state bar Elder Law section, NAELA Chapter or NAELA, and if so, in what capacity?
- Are you state board certified in Elder Law (not all states have such certifications) and/or certified as an Elder Law attorney by the National Elder Law Foundation (known as a Certified Elder Law Attorney)?
NAELA also offers a brochure to consumers called “Questions and Answers When Looking for an Elder and Special Needs Law Attorney“. To request a printed copy, please email Communications Associate Abby Matienzo at firstname.lastname@example.org. The information is also available here.
Can an elder law attorney also assist with things like Medicare, Long Term Care Insurance and Medicaid applications?
An Elder Law attorney can assist with Medicare, long-term care insurance, and Medicaid applications. It is best to ask the attorney whether she or he has experience handling such matters as it is possible that an Elder Law attorney will have expertise in some sub-specialties and not others within the umbrella of Elder Law issues that clients may be confronted with.
Should people consider consulting an elder law attorney even if they don’t have parents who are yet in need of special services?
If long-term care planning is important to the parents and/or the children, then it is always best to consult with an Elder Law attorney BEFORE the need for such services arises. The attorney will be in the best position to assist a client before any health or capacity issues present themselves. Advance planning allows for all of the necessary documents to be signed before any issues present that might preclude implementation of a plan, and advance planning usually allows for the client to choose among more options than in a crisis situation.
Please tell us about the National Healthcare Decisions Day, and how NAELA hopes to help caregivers to be better prepared?
During National Elder Law Month and on National Healthcare Decisions Day in May, NAELA members educated their communities about the value of additional important aspects of planning such as long-term care planning and estate planning. Elder Law attorneys also focused on important legal documents everyone should have in place: power of attorney, health care proxy, living will/advance directive, and last will and testament.
- Elder Law
- Medicaid Planning &
Long Term Care Planning
- Nursing Home/Assisted Living
Facility Residents' Rights
- Special Needs Planning
- Asset Preservation Planning
- Planning for VA Aid & Attendance Eligibility
- Estate Planning
- Guardianship, Fiduciary &
- Personal Injury Litigation