Introduction to Elder Care Law
At its core, elder care law refers to the legal framework covering the rights and responsibilities surrounding the care of senior citizens. From power of attorney to advance health care directives, elder care law covers a diverse array of concepts and procedures that can have a crucial impact on the quality of life of your loved ones as they begin to age. Because seniors are often the most vulnerable members of society, elder care law helps safeguard their rights and protect them from the unscrupulous actions of caretakers, institutions, or individuals . It is therefore highly recommended that you seek the guidance of an elder attorney when developing legal documents such as a power of attorney or estate plan, as well as when you suspect abuse or mistreatment of a loved one. In addition to legal protections for seniors, elder care law can provide assistance to certain members of your family with disabilities or special needs. It can be complicated and confusing to navigate elder care law on your own, which is why it is so important to consult with your elder care attorney to determine the best way forward.
Core Topics of Elder Care Law
The practice of elder care law encompasses a broad range of activities and legal issues that families face when caring for elderly loved ones. The following primary areas are at the core of elder care law:
Health care planning and decision making
One of the most critical areas of elder care law involves health care and medical treatment. An elder care lawyer can help you understand health care advance directives, such as Health Care Proxy and Living Wills, as well as a Health Care Agent’s responsibilities.
Another significant development in health care planning has been the introduction of the Health Care Proxy (HCP) which can be used to grant individuals the legal authority to make medical and/or health care decisions on behalf of individual who is deemed "incapacitated." In the event an individual has not named a Health Care Proxy prior to becoming incapacitated, a Family Court application may be necessary to appoint a Legal Guardian.
Financial Management and Property
An elder care lawyer can provide guidance on how to care for elderly family members who need assistance with paying their bills, managing their finances, and managing their property. Important issues include securing medical and long term care coverage, such as Medicaid and Medicare, as well as navigating the complexities of public benefits.
Estate Planning
The elder care lawyer can also assist the family in reviewing estate planning documents, including Trusts, Wills and Life Insurance Policies. For example, do powers of attorney and health care proxies still reflect the client’s intent? Are real property and other assets properly titled to avoid the unnecessary delay and cost of probate litigation and estate taxes? While many families have adequate estate plans already in place, others do not. The elder care lawyer can provide a second set of eyes to determine if changes are needed.
Social Security and Disability Benefits
An elder care lawyer can help you review your eligibility for government benefits that offset the costs associated with long term care, particularly in light of the complicated rules governing Medicaid/Medicare eligibility.
Elder Care Law Documents
The legal landscape associated with elder care can be complex and disruptive to the entire family, unless you’re prepared. Ideally, you have a plan that everyone in the family understands and is generally comfortable with. At least that’s what I see from my experience as an elder care lawyer. It’s no less true that you do not want to make these decisions while you or a family member is in crisis. Everyone needs to know the plan.
Some of the essential legal documents associated with elder care are powers of attorney, living wills, and advance directives.
When someone is unable to make their own decisions due to age, incapacity, or disability, a durable power of attorney may be required for estate planning and Medicaid planning purposes. The person who gives the power is called the "principal." The document may grant one agent or more than one agent as well as successor agents in the event that one of the agents can no longer serve. Agent powers can be chosen as limited or broad; however, broad powers give your agent unfettered access over your personal, real estate and financial assets. A durable power of attorney terminates on death—does not terminate on incapacity—but it remains effective after the principal becomes incapacitated. An agent derives his or her powers from the durable power and has a strict duty to act within the authority granted to him or her in the durable power.
A living will may be needed particularly if you, or a family member, has a terminal illness or is facing end of life issues. A living will outlines your preferences regarding end of life treatment, such as the administration of food and liquid and respiratory assistance. When you are faced with making end of life decisions, these can be very difficult issues to face. People often do not want to discuss such matters; but, talking about them might be something you need to do for the sake of your loved ones.
An advance directive allows you to designate someone to speak on your behalf when you are unable to make medical decisions for yourself. If you are in the hospital and unable to articulate your wishes, the person designated in the advance directive can serve as your health care proxy to communicate on your behalf to doctors or health care providers.
These are sometimes misunderstood or not well understood documents that can simplify many complex decisions by family members, friends and professionals. They are particularly critical for elder care planning.
Assisted Living and Nursing Homes
When older adults require round-the-clock care, they may turn to assisted living facilities, nursing homes or hospital-based long-term care. At the federal level, Medicare regulates care in nursing homes and hospitals, while Medicaid acts as the primary source of funding for long-term care in both institutions and the home for low-income individuals over age 65.
Most state laws govern care delivered in the community, through home- and community-based services programs, as well as in nursing homes and assisted living facilities. For instance, the federal government requires nursing homes to be state licensed, certified and have strong rights protections for residents. Each state defines what constitutes a nursing home and outlines requirements for licensure. They also articulate the licensing process, re-licensure requirements, information on complaints and ways to search for a facility and its inspection history.
The term "assisted living facility" is not uniformly defined across the United States. The scope of this type of housing option for older adults and others may include independent living, an assisted living community or residential care. States weigh in on what constitutes assisted living in their jurisdictions, and they make this decision based on their policy choice about how to regulate this type of housing.
States have varying definitions for assisted living facilities, which the government terms "assisted living communities." Some states have separate regulations for various types of assisted living facilities, while others regulate this type of facility under the existing laws that apply to nursing homes. In all states, these regulations are in addition to any other laws that apply to all types of long-term care facilities, like general provisions for patient rights.
Guardianship and Conservatorship
For individuals who reach the point in their lives where they are unable to make decisions or properly manage their financial and personal matters, guardianship and conservatorship may be a consideration.
Most people have heard of a power of attorney as a document that is executed to give someone the ability to make financial and medical decisions for another person. A power of attorney will make the decisions regarding care of the individual, but will not have the ability to force treatment upon the individual against their wishes. A guardianship is a legal proceeding whereby a Court appoints a guardian to make all financial and personal decisions for an adult . A guardianship can be a very expensive process and often requires hiring a psychiatrist to examine the individual and file a report with the court. A person who has a power of attorney can be the guardian for the individual. The difference between a guardianship and a conservatorship is that a conservatorship is a financial guardianship. The Court will appoint a conservator to manage all financial affairs for an individual. A Guardianship can be requested together with a Conservatorship or separately. There are cases where a Conservator may be necessary, but not a Guardian. These are very serious proceedings that should only be instituted as a last measure after other steps have failed to ensure the individual’s wellbeing.
Medicaid and Medicare
Elder care law seamlessly interacts with the cornerstones of medical and financial security for the elderly: Medicaid and Medicare. Because these programs concern concerns and eligibility requirements, it is necessary to understand their coverage details and interaction with elder care law. The coverage details of both programs are extensive. Generally speaking, Medicare covers hospitalization and outpatient services for people age 65 and older, as well as for some younger disabled individuals. Medicare does not cover long-term care (i.e., nursing home care), only covering skilled nursing care for a limited time. Those who are eligible for hospital and medical insurance through Medicare are also eligible for further assistance through Medicaid, whether automatically or through additional applications. Medicaid is a federally and state-funded program that pays for medical costs for those whose incomes and assets are below certain levels. It covers basic medical care, most nursing home costs, and in some states, long-term care for individuals and their spouses. For the elderly, Medicaid and Medicare interactions with elder care law generally include long-term planning and asset protection from nursing homes, care facilities, and other methods of medical and custodial care. Both programs have been strong segmented centers of legal growth in this practice area.
Abuse and Elder Care Law
Elder abuse is a tragic reality that can involve physical, emotional, sexual, or financial harm to older adults. Awareness of the types of elder abuse, signs of such abuse, and legal protections under elder care law are crucial for the prevention and management of these unfortunate situations. Signs that an elder may be subjected to abuse include suspicious injuries, sudden changes in behavior, withdrawal from social activities, or unexplained discrepancies in finances or estate planning. While some warning signs may be more apparent than others, it is essential to recognize that every case of elder abuse is unique and that the jurisdiction’s prospective laws may provide basic guidance – but are not a substitute for advice from a qualified legal professional. In many jurisdictions, elder care law affords legal protections for the prevention and remediation of elder abuse. For instance, there are often laws that require health care professionals, financial institutions, and even friends or family members to report suspected abuse to the authorities. Failing to make such a report can often result in criminal liability. In addition there are generally various mechanisms within the law that can help ensure the personal safety of a vulnerable adult. An elder care lawyer can assist with determining whether a restraining order, guardianship, conservatorship, or other legal tool may be appropriate to prevent and/or remedy a situation involving elder abuse. In conducting an analysis of the situation, the elder care attorney will often assess the following factors: Determining the right solution to a situation involving possibility of elder abuse is rarely simple. However, the ability to recognize the potentially devastating impact of such abuse, and be aware of common supporting characters, can be critical to ensuring proper outcomes.
Choosing an Elder Care Attorney
One of the best means of finding an elder care attorney is to ask for a referral from a trusted source, such as a physician, case manager, or other elder-care professional. Once you identify a few potential options, interview them to find out who is the best fit for your unique circumstances.
You can also conduct research online to further investigate the backgrounds and credentials of the attorneys on your shortlist. The American Bar Association has a helpful directory, and there is a corresponding directory for state bar associations that gives contact information for members and information about their certificates. The National Academy of Elder Law Attorneys lists member attorneys by state, so you can do additional research for lawyers who practice close to home. Finally, Google can help you find former client reviews and important information about your prospective elder care attorneys .
As you interview candidates, you’ll want to know how long they’ve been in practice, whether they’re members of any professional organizations, what their approach to cases is like, and their specific focus within elder law. Most elder law attorneys will offer free consultations to help you decide which individual is right for you—or they may charge a set amount for meetings so you can maximize the billable time you spend with them.
You may be wondering whether it’s important to hire an attorney who practices elder care law exclusively, or whether it’s preferable to hire someone who handles other types of cases as well (like family law or estate planning). Ultimately, this decision is up to you, but some may feel that other attorneys may not have the upscale knowledge of elder law and may not have dedicated their focus to this area. If you are already experiencing significant or end stage cognitive decline, you will want to make sure your attorney has experience with health care decision making as well.