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An elderly attorney is an old lawyer. An elder law attorney can be young or old, as long as he practices elder law.
What is elder law? Elder law primarily addresses the special legal needs of the elderly. The practice of elder law includes government benefits planning in the areas of Medicare, Medicaid (ALTCS in Arizona), Social Security and the Veterans Administration. The practice of elder law also focuses on long term care planning and addresses legal issues related to capacity including guardianship and conservatorship proceedings. Estate and gift planning as well as retirement planning are also typical areas of concern for the elderly. In addition, age discrimination in employment or housing may also be a concern. An elder law attorney's client may also be experiencing physical abuse or financial exploitation. Some elder law attorneys provide litigation services for abused or exploited seniors. Finally, senior citizens residing in a nursing home may need assistance regarding their rights while in the home or upon their discharge.

Planning for parents with disabled children is also offered by many elder law attorneys because of their familiarity with public benefits such as Medicaid and Supplemental Security Income. Developing and administering a special needs trust for a disabled child is a service offered by some elder law attorneys as a subspecialty area within the elder law attorneys practice.

In addition to concerning himself with the special legal needs of the elderly, an elder law attorney must be prepared to make appropriate referrals for placement and services in the community. He should be familiar with respite care, adult day care and hospice. He should have at his fingertips the names of solid, trustworthy professionals including insurance advisors, financial planners, accountants, geriatric care managers, psychiatrists, geriatric physicians and neurologists, among others.

Above all, an elder law attorney must be respectful, patient and compassionate in providing advice to his senior clients. Often the elder law attorney's office is the last stop after a client has made many visits to other well-meaning but unhelpful attorneys who do not have sufficient knowledge in the area of elder law.

How do you find an elder law attorney? The best way is by referral. Ask the people who work in the area of elder services, including for example social workers at hospitals, nursing homes or adult day care centers, geriatric care managers, geriatric physicians, neuropsychologists and neurologists. Organizations that focus on the needs of seniors such as the Alzheimer's Association and the Area Agency on Aging are also appropriate sources for referrals. The web site for the National Academy of Elder Law Attorneys (www. Naela.org) allows you to search for elder law attorneys by name, location, and area of practice. Finally, and least reliably, you can find lawyers listed in the Yellow Pages under the practice heading of Elder Law.

 

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You may believe after you’ve read the title to this article that the topic is not one of concern to you because your loved one suffers from Alzheimer’s disease or another related dementia. However, sometimes mental health services are required for someone with dementia who is exhibiting difficult behaviors. In extreme cases, psychiatric hospitalization may be required to find appropriate medications and behavioral techniques to stabilize the behaviors. Under current Arizona law, though, it can be very difficult for family members to legally admit their loved ones into a psychiatric hospital.

A law passed in 1999 makes it clear that, except in limited circumstances, a family member could not authorize inpatient psychiatric hospitalization for an incapacitated individual who cannot give informed consent to treatment. The family member must be either appointed by the court as a mental health guardian or appointed as an agent to make mental health treatment decisions under a mental health power of attorney signed by the patient at a time when he/she had the capacity to sign the document.

Some family members and health care providers felt that this law made it too difficult for family members to get their loved ones into a hospital. After one family member had to go through an expensive guardianship proceeding to admit her husband into a psychiatric hospital, she complained to the legislature. Through her advocacy effort, the law was changed to make it somewhat easier for a psychiatric hospital admission of an incapacitated person. This change in the law was supported by the Alzheimer's Association.

Under law that became effective on July 18th, 2000, a person can include in his or her regular health care power of attorney a provision that authorizes the appointed agent to admit the person into a psychiatric hospital. Doing a separate mental health care power of attorney is no longer required, although this document still continues to be available as an alternative under the new law.

For those persons who do not plan ahead, the legislators has made it easier for family members to admit their loved ones to a psychiatric hospital when there is no power of attorney authorizing inpatient psychiatric hospitalization in an emergency. A patient may be admitted in such an emergency for inpatient psychiatric treatment by the informed consent of an agent appointed under a regular health care power of attorney even if there is no authority for inpatient admission, or by a "surrogate" designated by statute. The order of surrogate priority by statute is the patient’s spouse, an adult child of the patient, a parent of the patient, the patient’s domestic partner, a brother or sister of the patient, a close friend of the patient, or the patient’s attending physician.

However, a petition for guardianship with mental health powers or a petition for court ordered evaluation at the Maricopa County Psychiatric Annex must be filed within 48 hours of the emergency admission, excluding weekends and holidays. If this is not done and the patient is not able to give informed consent to treatment, then the patient must be released unless the facility is otherwise prohibited from discharging the patient under federal law. Under federal law, the patient must be stabilized before he can be discharged.

It is important that if your loved one is suffering from Alzheimer’s disease or some other dementia, that you plan in advance to ensure that an expensive and stressful guardianship proceeding does not become necessary in the future. A simple, inexpensive mental health care power of attorney or health care power of attorney authorizing the agent to consent to inpatient psychiatric treatment can be prepared and signed in advance, assuming that the individual with the dementia diagnosis is competent to understand the document. If your loved one has a diagnosis of dementia, do not assume that psychiatric hospitalization will never be required; you will be very glad you have the appropriate power of attorney if the need for such hospitalization ever arises.

Downloadable Forms and additional information on advance directives, living wills, and health care power of attorney can also be found through the dgcenter.org.

 

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You may have an elderly parent or relative who is stricken with a serious health problem and needs long term care. If you are in the role of caregiver, you may become so overwhelmed by the pervasiveness and stress of caregiving that you fail to consider the legal ramifications of your loved one’s long term disability. However, legal and financial planning in this situation is absolutely critical and should not be neglected. This planning should address at least five issues: ensuring access to assets, preventing financial exploitation, ensuring health care decisions are made appropriately, inheritance and estate tax planning and financing long term care costs.

*Do you have access to your loved one’s assets?

You should be concerned about any assets titled solely in the name of the disabled person (i.e., bank accounts, IRA’s or retirement plans) and any assets that require joint signatures to liquidate (i.e., a house in joint tenancy).
Access to financial accounts, including bank accounts, can be gained by adding a name as a signor or joint owner. Beware that if ownership is with the “right of survivorship,” the survivor will get all of the funds in the account upon the death of the joint tenant, even if a will divides up the deceased person’s assets differently. Also beware that if the person named jointly on your account is sued, your money could be subject to collection on any judgment entered against that person.

For the reasons noted above, it is usually preferable to sign a financial or durable power of attorney which allows the agent to access a bank account and also to conduct other financial business such as filing income tax returns and accessing retirement accounts. However, it is important that the agent appointed by the disabled person be honest and trustworthy!

*Is your loved one protected from misuse of funds by himself or others?

What if your loved one has a disability that causes him to go on an irresponsible spending spree? Will the fact that you are his financial agent appointed under a power of attorney protect him from himself?

The answer is no because the power of attorney did not take away any legal authority from him. It merely gave you the power to also handle his financial affairs. Similarly, a power of attorney does not protect the disabled person from being financial exploited or unduly influenced by someone else who is taking him to the bank on a regular basis and convincing him to “give” the money to the exploiter.

Protection from spending sprees and exploitation by others can be provided to your loved one through a living trust. Your loved one’s assets are titled in the name of the living trust and managed by the trustee. Only the trustee will have access to the assets. If the initial trustee becomes disabled, a named successor trustee can take over.

The assets of your loved one can also be protected by a court order through a “conservatorship,” which provides the highest level of protection. With a conservatorship, nobody has access to the assets without a court order, or if the appointed conservator posts a bond, the conservator can gain access to a limited amount of the assets. Conservatorships, however, are relatively expensive and the management is time consuming.

*How do you ensure your loved one’s health care decisions are carried out according to his wishes?

In a health care power of attorney your loved one can choose an agent to make decisions for him in accordance with his wishes. Additionally, if specifically stated, this document can authorize the agent to admit your loved one into a psychiatric hospital if it ever becomes necessary.

A living will can be used to set forth your loved one’s directions about life support if he becomes terminally ill, comatose or lapses into a persistent vegetative state. A “pre-hospital medical directive” can also be executed to ensure that emergency care personnel do not use extraordinary methods to extend your loved one’s life.
*Are your loved one’s wishes for providing an inheritance reflected in his estate plan?

A will or trust should be prepared and/or reviewed when the individual is first diagnosed with the long term illness. If you anticipate that the person may need benefits through the Arizona Long Term Care System (ALTCS), which has financial eligibility requirements, drastic changes in the will or trust may be required. If the individual is married, the spouse may want to consider changing the spouse’s will to ensure that the disabled person will not be disqualified from ALTCS by inheriting from his spouse. In most cases, it is also appropriate to take all assets out of the couple’s living trust if ALTCS benefits are being sought. In larger estates, it is important to ensure that appropriate estate tax planning has been done.

*How is your loved one going to pay the costs of his long term care?

Medicare provides very limited benefits for long term care costs. Therefore, the family should carefully examine their income and expenses to determine whether a “spend-down” out of savings will be required, i.e., whether expenses will exceed income. Sometimes decreasing expenses by finding more affordable care, cutting down on other expenses and increasing return on one’s investments is all that is necessary to prevent “spend down.” However, often proper budgeting alone is not sufficient to close the gap between income and expenses. In this situation, obtaining benefits through ALTCS may become necessary. ALTCS provides substantial long term care benefits including home care benefits, as well as coverage for the cost of adult foster care homes, and many assisted living homes and nursing homes. There are both income and resource financial eligibility requirements to qualify for ALTCS benefits.

Planning can be done to preserve assets from being “spent down” on long term care while at the same time hastening the individual’s eligibility for benefits through ALTCS. Strategies that can be used include, among others, transferring assets to an individual or to an irrevocable trust, purchase of excluded assets such as a home or buying a single premium annuity. The ALTCS rules are complex and these strategies should only be tried with the advice of a knowledgeable elder law attorney. However, with appropriate planning a substantial amount of the disabled person’s assets can usually be preserved from spend down on long term care.

• Timing is important

The timing for your loved one’s legal and financial planning is very important. Start the legal planning for your loved one immediately after a diagnosis of a long term illness. Your loved one must be legally competent in order to engage in planning and execute estate planning documents. Once your loved one is mentally incapacitated, it will be too late to have him sign powers of attorney or living trusts and costly court proceedings may be required. For example, a client of mine wanted to sell his home. Unfortunately, his wife was mentally incompetent and could not legally sign the documents required for the sale of the home. Consequently, we had to file a petition with the court asking that
my client be appointed as his wife’s conservator so that he could sign the papers required for the sale of their home. If the wife had signed a financial power of attorney while she was mentally competent, they could have avoided thousands of dollars in court costs and legal fees.

Planning ahead with respect to financing long term care is also important. Sometimes “transferring” assets to qualify for ALTCS benefits is a good idea, but it is much more effective if it is done prior to care for the disabled person becoming too expensive. There are many options available to ensure that your loved one’s legal and financial needs will be met, but planning should be started early and assistance should be obtained from qualified professionals.

 

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As an elder law/estate planning attorney I see many cases where estate planning ahead of time could have avoided stressful and expensive guardianship and/or conservatorship court proceedings. A good example is a an appointment I had this week.

I met with an elderly gentleman whose wife is in a psychiatric hospital and now he cannot manage their financial affairs, and the wife’s healthcare decisions. The wife had been managing all of the couple’s finances and the husband has no idea of what their assets are or the total value of the estate. His name is on their joint checking account but there are only limited funds in the checking account and he is not titled on any of their other assets. The bank would not give him any information about the couple’s savings account because he was not titled on the account. The husband is now at home going through all of his wife’s financial records to try to determine the nature of their assets.

To remedy this situation, we will have to file a petition with the court to have him appointed as conservator so that he can gain access to the financial accounts in order to pay the ongoing bills. Currently, he could not even sell his house if he wanted to because it’s in joint tenancy and the wife is incapacitated. To further complicate matters, the psychiatric hospital is concerned about keeping the wife at the hospital without someone with legal authority consenting to her care because the wife is incompetent to give informed consent to treatment at the hospital. Therefore, we will also have to ask the court to appoint the husband as her mental health guardian in order to authorize the continuing treatment of the wife at the psychiatric hospital.

When all is said and done, this could cost him up $3.000 to $4,000 in legal fees and court costs. It also means that the court will have continuing jurisdiction over the case and the husband will have to file annual accountings with the court setting forth the receipts and expenditures related to the wife’s funds. The couple has been married for over 50 years; isn’t it unfortunate that this late in their lives they have to undergo this kind of stress and expense? It all could have been so easily avoided.

In this situation, the husband and wife, at a time when they were both competent should have made an appointment with an estate-planning attorney. At that time the attorney could have required them to bring in a list of all of their assets. The attorney could have recommended either a will or a trust to address the passing of their assets on death, a financial power of attorney to allow someone to manage their financial affairs in the event of their incapacity, and a health care power of attorney/living will to address health care decision making in the event of their incapacity. The attorney could have also discussed with them the option of a mental health power of attorney, which would have allowed the agent to admit the husband/wife to a psychiatric hospital at a time when he or she was unable to give informed consent to treatment. Under new Arizona law, an agent appointed under a regular health care power of attorney cannot admit the principal into an inpatient psychiatric facility unless this authority has been specifically granted in the document.

The lesson to be learned is that we all should plan ahead. When someone becomes incapacitated it is too late to sign legal documents. Avoid the time and expense involved in guardianship and conservatorship proceedings. Talk with your attorney now about the legal documents needed to protect you in the event of incapacity.

 

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You need to do your estate planning, but you are not sure what you need. Where do you start? Perhaps the best place to begin is with definitions and an understanding of the purpose and objectives of estate planning.

At its most basic level, your estate plan is a plan to manage your wealth while alive and handle the distribution of your wealth upon your death. The objectives are to get the maximum enjoyment from your assets during your lifetime, distribute your assets to the people you have chosen upon your death, avoid excessive attorney and court costs associated with probate, and minimize death taxes.

Two of the most widely prepared estate planning documents are the will and the revocable living trust. How do you know which one you need? What are these documents and what are the advantages and disadvantages of each?

A will is a simple and inexpensive document that controls the disbursement of your assets upon your death. A will does not control assets owned by a trust or assets with a designated death beneficiary such as joint tenancy assets, life insurance and retirement plans. A will sets forth your wishes with respect to the passing of your property upon your death. It also allows you to select the personal administrator who will pay off debts and expenses of last illness as well as make funeral arrangements and distribute your property to the appropriate beneficiaries. Furthermore, it gives those that inherit a full step-up in tax basis in property, and ensures that creditor claims are paid after appropriate notice. However, a will requires a court proceeding with the attendant costs if your personal property or your real property totals more than $50,000 in value. A will can be contested, requiring even greater attorney and court costs. In addition, your estate will be taxed if your total estate, including life insurance proceeds, exceeds $2 million, as of January 1, 2006, if appropriate estate tax planning is not done.

A revocable living trust is a formal trust document designating a grantor/ trustor, trustee, and beneficiaries. Married couples with a living trust can eliminate or substantially reduce estate taxation upon the death of the second grantor/trustor for combined estates larger than $4 million as of January 1, 2006. There is no required court proceedings to probate your assets, and the trust property still receives a full step-up in tax basis at the time of your death. A trust also allows for a successor trustee to manage your property while you are alive but incapacitated. A trust is generally more expensive than a will, but less that the cost of probate, and a more complicated document than a will. In addition, assets must also be re-titled to the trust to make the trust effective.

A trust is not for everybody, but should be considered as an option. Whether to have a will or a trust is a decision that should always be made with the assistance of an experienced estate planning attorney. It is also a decision that should not be put off. As has been said, there are only two certainties in life: death and taxes!