Common Legal Issues for Seniors
As our loved ones age, their legal needs often become more complex and urgent. It is not uncommon for seniors to require comprehensive legal support in several areas. Estate planning and administration, which includes the drafting of wills, trusts, and powers of attorney, is one of the primary legal concerns that senior clients face. These documents help ensure that a person’s property and medical decisions are handled according to their wishes when they can no longer make those decisions. At the same time, it is important to have plans in place to address healthcare issues, such as long-term care and Medicaid qualification. Elder abuse and neglect is sadly another common concern as elderly individuals may be vulnerable to mistreatment or exploitation .
Given these potential issues, seniors benefit from working with lawyers experienced in "Elder Law," a broad area encompassing many of these common legal challenges. In addition to estate planning, Elder Law also covers long-term care planning and Medicaid, guardianship and conservatorship, SSI and SSDI, nursing home – assisted living – home care issues, elder abuse and neglect, and special needs trusts. An experienced Elder Law attorney can not only help seniors with business, estate, real estate, and family law matters, but can also connect seniors to the many public services and support systems available to them.
Planning Your Estate
A crucial part of a complete plan for managing affairs is arranging for what happens when, for whatever reason, it is no longer possible to handle the future by oneself. While there are various ways to approach this step, it typically involves a set of documents designed to address different situations, including incapacity.
An advance health care directive, also known as an advance medical directive or living will, is the legal document that allows you to express what directions and limitations you would like for your medical care in the event you are incapacitated and unable to voice your requirements. One of these documents may include appointing an agent to act on your behalf to confirm or deny consent to medical procedures, treatments, or medications, such as a power of attorney for healthcare. An estate attorney can draft an advance health care directive or power of attorney to meet the needs of a particular individual.
A financial power of attorney allows you to appoint someone as your agent to handle your finances if you are incapacitated. The authority of this representative can be limited to specific needs or extended to include all matters concerning your financial and personal property. When completed appropriately, financial powers of attorney pass talented authority regarding financial matters to your agent that would otherwise be voidable by a court.
A living trust is an appropriate method of transferring property for many seniors, allowing you to assign an asset for the purpose of retiring the debt during your lifetime. On your death, the property passes to your beneficiaries through the trustee(s) and does not require probate. Life insurance can serve the same purpose.
A revocable (or living) trust allows you to protect your assets from estate taxes at death. Individuals who pass exceed the federal estate tax exemption amount may lose some or all of their estates to state and federal estate taxes. However, not all assets are subject to estate taxes; in some cases, an estate will decrease after expenses and taxes are paid, so funded trusts can eliminate all or part of that liability. A practical third-party revocable trust permits a married couple to transfer title of property to a revocable (or living) trust in order to reduce the estate taxes that might occur on the death of a spouse. Therefore, the sole estate tax is lowered to the federal tax.
Health Care Directives and Living Wills
To further reduce overall stress for clients, we also offer a full range of advance care planning services. These include the creation of healthcare directives and living wills to further ensure that medical staff will respect your wishes in the event that you are no longer able to communicate them. These legally recognized documents outline your medical preferences and, in the case of a healthcare directive, appoint a trusted individual as a healthcare proxy. In California, this is a separate document from a durable power of attorney.
Elder Law Services in Monterey, CA
Elder law encompasses a wide range of legal services that are relevant to the elderly or those planning care for an elderly relative. Beyond the basics of estate planning, elder law includes areas such as long-term care options, Medicare and Medicaid benefits, nursing home care, financial elder abuse, guardianship, and conservatorship. In Monterey, CA, you can trust the Law Offices of Steven M. Farris for comprehensive legal support in these and other elder law matters. Many people in Monterrey associate this beautiful town with its famous aquarium, the stunning coast, and the magnificent cypress trees of the nine-hole golf course, but Monterey is home to more than 150,000 residents. As we all know, this population has a higher percentage of seniors who require special legal assistance tailored to their needs. Estate planning, nursing home care, and even Will disputes are some of the areas in which many of these older adults need legal help. Careful estate planning is in fact crucial for seniors everywhere, especially in California. However, senior citizens and their families should not limit their attention to estate planning. They also need to have a dedicated Monterey law firm on their side to help with elder abuse, long-term care options, Medicare, medicaid, and nursing home care, if required. Long-term care often requires a comprehensive plan that includes many professionals who understand the laws, rules, and regulations surrounding care options and finances. Mr. Farris has extensive expertise in estate planning, asset protection, and elder abuse or financial abuse cases. Monterey, CA seniors and people of all ages can count on his firm to provide compassionate, honest information about all matters concerning elder law. Even though Mr. Farris’ primary office is in Alameda, he has another office in Monterey to assist clients conveniently. Medicare and Medicaid have become an integral part of senior care and support, but knowledge is crucial to getting the most from these important programs. Elder law attorneys are well versed in how these programs work, what benefits each offers, and solutions for application denials. The Law Offices of Steven M. Farris offers free consultations to seniors and their families needing help with transferring assets to medicaid, veterans benefits, and social security and disability benefits for themselves or their disabled children. Financial elder abuse is a disturbing reality for many older adults. Exploitation not only occurs by strangers but in many cases, elder abuse happens at the hands of people such as caregivers, siblings, and abusive spouses. While family members may exploit assets, they may also seek guardianships and conservatorships. The Farris firm can represent clients looking for estates to contest, guardianships to terminate, or conservatorships to contest.
Guardianships & Conservatorships
California law recognizes that there are circumstances when a trustee or agent acting under a power of attorney is unable or unwilling to perform their duties. In such a case, a court can step in and appoint a guardian or conservator for the estate of the senior. California law also recognizes that senior may have lost mental and/or physical capacity. In such a case, a court can step in and appoint a guardian or conservator for the person. These are separate proceedings requiring separate procedures. A single petition can be filed for both, but a court can only make one type of appointment. Recipients of government benefits including SSI and Medi-Cal, Welfare & Institutions Code Section 14000 et seq., are entitled to notice of the proceedings and an opportunity to participate in the process.
Some individuals may require both types of appointment. A conservatorship for the estate can remain in place for some period of time even after the senior has passed away to act on behalf of the estate as a fiduciary in the estate administration proceeding.
Proceedings require court forms including a medical declaration form completed by the senior’s physician, the notice of hearing form, and the citation form. These can be completed by an attorney, or by the individual seeking the appointment through Senior Legal Services of Monterey County. Unless the senior is fully incapacitated, they are required to sign the notice of hearing form. Court proceedings may require a waiting period of up to two months, depending on the call list assignment and location of the hearing, and may involve court appearances by the person seeking the appointment. The conservatorship proceedings may also include a bonding process, or an order that the conservator maintain insurance , money management training, or other protective measures. Court proceedings may only include those items specifically requested. Any others must be the subject of a separate supplemental or modified petition and order.
The court will appoint a person to act as the conservator of the estate, and a separate person to act as the conservator of the person. The conservator of the estate is responsible for assets of the senior with which the senior is no longer able to manage. The person may still participate with some of the decision making, or delegate authority to another assigned person to assist them. The conservator of the person may be necessary for additional assistance in personal matters including personal care, housing, and visitation with loved ones.
Either type of conservatorship can be terminated by the court, or the death of the senior. A conservator of the estate may resign or be removed for malpractice, breaches of fiduciary duty, or neglect of the position. A conservator of the person may be dismissed or ordered to take a course or perform some service, or the person may consent to be voluntarily dismissed from the role after a certain date or condition.
Conservatorships are a useful legal tool for those providing ongoing care for a senior. It is designed to provide a practical solution for asset and financial management issues, as well as physical care needs for individuals who can no longer provide their own care. Many patients choose to execute durable powers of attorney for asset management instead, but those documents provide the opportunity for a senior to delegate authority to those in their lives to act on their behalf rather than placing an actual fiduciary as a substitute for their decisions.
How to Choose an Elder Law Attorney
When selecting an attorney for your legal needs as a senior (or your loved one’s), it is important that you select someone who specializes in the intricate, evolving practices for seniors. Here are some guidelines. First, the elder law attorney should be a member of the National Academy of Elder Law Attorneys ("NAELA"). This is the professional association dedicated to the practice of elder law. NAELA members practice substantially in the areas of elder law and special needs law, following the NAELA Aspirational Client Care Standards. This means they are highly experienced and knowledgeable in the area of senior needs, including special needs planning, estate planning, probate, elder abuse and neglect, Medicaid planning and representation, special needs trust drafting and administration, public benefits advocacy, guardianship, conservatorship, long-term care planning and advocacy, general advocacy for elderly clients and their families, and advocacy for elder rights.
Secondly, for someone living in or near Monterey, CA, you will want to select an attorney who has strong ties to the local community. They should be familiar with not only the elder law needs of the local senior population, but also with issues elders face when it comes to long-term care facilities. Elder law practitioners are often asked to act as a liaison between residents and management staff, to assist with the filing of grievances, to participate in interdisciplinary care conferences and family councils, and to advocate on behalf of residents who have been wrongfully evicted or subjected to elder abuse and neglect.
Lastly, and perhaps most importantly, you will want to make sure the attorney is experienced in the senior needs you will be facing. If you are seeking a Power of Attorney or Health Care Proxy, then make sure the attorney has experience in that. If you require assistance with Medicaid (Medi-Cal in California) or Special Needs Planning, make sure you select an attorney who works to stay on top of those. Also make sure to review their client testimonials.
Local Resources & Support Services
For seniors in the Monterey, CA region seeking legal help, there are several valuable local resources and support services available. The Salinas Valley Mental Health Service provides legal aids as well as remedial clinics, all of which are connected through the Monterey County Commission on Aging. The commission improves quality of life for senior citizens in Monterey County by assessing vital needs and educating the public on issues affecting older adults. The Legal Aid Services of Santa Cruz County has two legal aid offices, one located in Salinas and one in Watsonville. Orientation services are available for seniors, helping them identify legal services that can help them with anything from guardianship to power of attorney. The Spousal Support Division at the Department of Child Support provides another way for seniors to get appropriate assistance from local authorities and agencies.
Frequently Asked Questions
As a senior citizen or the family member of one, you likely have a lot of questions surrounding legal issues. These are complex matters that can leave more confused than helped at the end of the day. The following provides some clarity on these issues: Do I really need a lawyer to represent me? Depending on the severity of your case, you may or may not actually need a lawyer to represent you. While simple will and contract preparation require minimal legal assistance, other issues such as court representation and estate planning should be handled with the utmost precision and care by an experienced lawyer. What types of legal issues do you help seniors with? The most common legal issues for seniors in Monterey, CA include estate planning , power of attorney, guardianship, real estate, Medicaid eligibility, retirement benefits, wills & trusts, civil rights, elder abuse and theft (including financial). We help seniors navigate each of these issues and more every day, making sure your needs are met and rights protected. Who makes it through the process the fastest and with the least amount of headaches: Those who enlist the aid of a lawyer to handle their legal issues. Scheduling appointments, filling out confusing paperwork, understanding legal jargon and corresponding with others involved in the process are all time-consuming and complicated issues best left to a professional. It is our job, thus our responsibility, to help you ensure a process free of complications.