Elder Law attorneys focus on the various problems and issues that concern the elderly and their families.
The typical issues that an Elder Law attorney can assist with are:
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A loved one needs to be placed in a nursing home.
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A determination needs to be made regarding Medicaid qualification and planning the preservation of assets to avoid spousal poverty
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Incapacity planning, including the preparation of Financial and Medical Powers of Attorney
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Probate issues, including guardianship and conservatorship, and estate administration
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Estate planning, both during one’s lifetime and planning for the distribution to beneficiaries after death
Professional planning for possible disability or eventual death is necessary for everyone. An experienced Elder Law attorney can assist with the necessary planning and prepare any documents that are needed.
While there are many people that receive home health care services through the Medicare program, the program was designed as a post-hospital benefit for those seriously ill or needing continued rehabilitation. Medicare will not cover simple personal care services such as assistance with bathing, cleaning a home, or making a meal.
A client qualifies for Medicare home health care services if:
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A physician has signed a care plan. The plan should include all necessary medical supplies and equipment as well as all necessary home health aides.
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The care will be provided by, or under arrangements with, a Medicare-certified home health agency.
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The client must need: part-time or intermittent skilled nursing care or the assistance of home health aides
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The client needs physical, occupational, or speech therapy
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The client is home-bound
Whether or not a person has capacity is a determination made by the Court. It is a legal concept and the definition varies by jurisdiction. A doctor’s opinion on capacity remains an opinion until a judicial ruling on the evidence is given. All adults are presumed to be competent until proven otherwise.
Under current Michigan law, an “incapacitated person” is defined as an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions. MCL 700.1105(a). If a person (other than a minor) is determined by a Court to be legally incapacitated, then a guardian is appointed to provide continuing care and supervision for that individual.
The law recognizes that a person is rarely totally incapacitated. Capacity may depend on the type of decision that needs to be made or the surrounding circumstances. For instance, a person may be capable of handling personal safety issues but not money matters. Often the Court will consider appointment of a limited guardian that is only allowed to assist the incapacitated individual under specific circumstances.
Many people bypass lawyers and create their own wills, trusts, powers of attorney and other estate planning documents with the help of online tools and books. Does this approach breed mistakes? When it comes to legal issues, does one size fit all?
There are many risks involved with preparing estate planning documents yourself. One risk of the do-it-yourself approach is that self-written documents may contain holes that can lead to costly errors. If the documents are not properly witnessed or notarized, then the documents could be considered invalid. In addition, a self-written documents may inadvertently give someone more power than you want (when writing a durable power of attorney). The do-it-yourself approach to estate planning can lead to a false sense of security; answering one question incorrectly or overlooking something such as appointing a guardian for children can lead to major problems down the road.
Bottom line: consult an attorney that is knowledgeable in estate planning when preparing your estate planning documents. Spending a few dollars now may save your estate thousands of dollars later to fix problems that your do-it-yourself documents created.
Elder abuse affects hundreds of thousands of senior citizens annually. Seniors can be harmed physically or emotionally by neglectful or overwhelmed caregivers or preyed upon financially by strangers, family, or friends. As elders become more physically frail, they’re less able to stand up to bullying and or fight back if attacked. They may not see or hear as well or think as clearly as they used to, leaving openings for unscrupulous people to take advantage of them.
The first agency to respond to a report of elderly abuse, in most states, is Adult Protective Services (APS). Its role is to investigate abuse cases, intervene, and offer services and advice. The power and scope of APS varies from state to state. In Michigan, you can call 1-800-996-6228 for reporting elder abuse in the home, in the community, or in nursing homes and other longterm care facilities.
A Living Will is a declaration to physicians that you wish life-sustaining procedures to be withheld or withdrawn if you are in an incurable condition and your death is imminent or if you are in a persistent vegetative state. It is a document that outlines your wishes to your physicians and the patient advocate (agent) designated in your health care Power of Attorney.
A Power of Attorney for Health Care appoints an agent to make most decisions related to your health care if and when you are unable to make those decisions yourself. If you specifically grant the power, your agent can decide to withhold or withdraw non-orally ingested nutritional support and fluid maintenance, admit you to a nursing home or community-based residential facility, and make other health care decisions.
If you have both a Living Will and a Power of Attorney for Health Care, the Power of Attorney for Health Care controls if there is any conflict between the two.
A guardian is a person appointed by a court to serve as a substitute decision maker for a person called a ward who, because of an impairment, is found by a court to be incompetent.
The court may appoint one or more persons to meet the ward’s needs. The court may give the guardian authority to make personal decisions for the ward, including providing informed consent for health care and medication, deciding where the ward will live, and deciding who will provide social and supportive services for the ward. This type of guardian is a “guardian of the person.” The court also can give the guardian authority to manage the ward’s money and other property. This type of guardian is a “guardian of the estate” or more commonly referred to as a conservator.
The court has broad discretion in deciding whom to appoint as guardian and/or conservator. The court makes the decision based on what it believes to be in the best interest of the proposed ward. The judge will consider the preference of the proposed ward or adult relatives or friends of the proposed ward. Often, an adult family member or a family friend is the best choice to be appointed as guardian and/or conservator; however, non-family members are often appointed as well.
Laughter truly is the best medicine…..
Three sisters, ages 92, 94 and 96, live in a house together. One night the 96-year-old draws a bath. She puts her foot in and pauses. She yells to the other sisters, ’Was I getting in or out of the bath?’ The 94-year-old yells back, ‘I don’t know. I’ll come up and see.’ She starts up the stairs and pauses
’Was I going up the stairs or down? The 92-year-old is sitting at the kitchen table having tea listening to her sisters, she shakes her head and says, ‘I sure hope I never get that forgetful, knock on wood.’ She then yells, ‘I’ll come up and help both of you as soon as I see who’s at the door.’
And another chuckle….
Two elderly ladies had been friends for many decades. Over the years, they had shared all kinds of activities and adventures. Lately, their activities had been limited to meeting a few times a week to play cards. One day, they were playing cards when one looked at the other and said, ‘Now don’t get mad at me … I know we’ve been friends for a long time, but I just can’t think of your name! I’ve thought and thought, but I can’t remember it. Please tell me what your name is. Her friend glared at her. For at least three minutes she just stared and glared at her. Finally she said, ‘How soon do you need to know?’
Many seniors mistakenly believe that Medicare covers nursing home stays. In fact, Medicare’s coverage for nursing home care is quite limited. Medicare only provides up to 100 days of “skilled nursing care” per illness, and there are a number of requirements that must be met before the nursing home stay will be covered.
In order for a nursing home stay to be covered by Medicare, the individual must enter a Medicare approved “skilled nursing facility” or nursing home within 30 days of a hospital stay. The hospital stay must have lasted at least three days, not including the date of discharge. The care in the nursing home must be for the same condition as the hospital stay. In addition, the individual must need “skilled care.” This means a physician must order the treatment, and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse. Finally, Medicare only covers “acute” care as opposed to custodial care. This means that Medicare only covers care for individuals who are likely to recover from their medical conditions, not care for individuals who only need assistance with activities of daily living, including: eating, bathing, continence, dressing, toileting, and transferring.
Once the individual is in a nursing facility, Medicare will cover the cost of a semi-private room, meals, skilled nursing and rehabilitative services, and medically necessary supplies. For the first 20 days, Medicare covers 100 percent of the costs. Beginning on day 21, the individual is responsible for a daily co-payment amount. This daily copayment amount may be covered by the individual’s Medicare supplemental insurance policy, assuming he or she already has one. After the 100 days are up, Medicare nursing home benefits end, and the individual is then responsible for all costs moving forward. At that point, many individuals will turn to Medicaid for assistance.
In 1987, Congress enacted the Nursing Home Reform Law that has been incorporated into the Medicare and Medicaid regulations. The law gives residents a number of specific rights, including:
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Residents have the right to be free of unnecessary physical or chemical restraints.
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Facilities must inform residents of the name, specialty, and means of contacting the physician responsible for the resident’s care. Residents have the right to participate in care planning meetings.
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At the time of admission and during the stay, nursing homes must fully inform residents of the services available in the facility, and of related charges.
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Residents may bring personal possessions to the nursing home, such as clothing, furnishings and jewelry.
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Nursing home residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice, an opportunity for appeal and a showing that such a move is in the best interest of the resident or necessary for the health of other nursing home residents.
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Residents have the right to gain access to all his or her records within one business day, and a right to copies of those records at a cost that is reasonable in that community
