The term "Elder Law" refers to a variety of legal services
available to those over the age of sixty-five (65), depending on
their individual needs. However, it most often refers to:
In addition to drafting normal Estate Planning documents, older
clients needing long-term care may want to shelter their assets
before applying for Medicaid. This is called "Medicaid
ESTATE PLANNING FOR OLDER CLIENTS:
Durable Powers of Attorney and Living
Everyone should have Durable Powers of Attorney and Living
Wills to protect them in case of their incapacity. This is
especially true for clients over the age of 65, merely due to
their age. These documents need to be updated regularly to keep
them from getting "stale", and to reflect changes in the law or
the client's wishes.
A Power of Attorney is a document allowing the client to
pre-determine who will handle their affairs for them during any
period in which the client is incapacitated. A Power of Attorney
becomes null and void upon the death of the Principal - the person
who signed the Power of Attorney. Clients should have a Durable
Power of Attorney for both Financial Decisions and Medical
Many clients do not want to give someone else decision making
authority while they are still competent. Therefore, a Power of
Attorney can be either immediate or what is called "Springing",
which means it does not "spring into effect" until the client
All Powers of Attorney should state that they are "Durable",
which means they will remain valid even after the client becomes
In addition, if the client does not wish to be kept alive by
artificial means, then they should have a Living Will, also called
an Advanced Medical Directive, which states just that. A Living
Will does not come into effect in Colorado until the client is
unable to make medical decisions for themselves, and two Doctors
have certified that there is no reasonable chance of the client
recovering from a life-threatening condition. Colorado revised its
Living Will statute effective August 2010, and now allows people
to make different provisions depending on whether they are in a
coma or suffering a terminal illness.
Due to the ever increasing complexities of these court
proceedings, Ms. Heller no longer handles these matters, even if
they are non-contested. Instead, she will refer such matters to an
attorney who handles estate litigation.
A Guardian is someone who is appointed by the Court to make
decisions for an incapacitated person regarding where they will
reside, their medical treatment, and so forth.
A Conservator is someone who is appointed by the Court to
handle the finances of an incapacitated person.
The need for a Guardian or Conservator usually arises because
the client does not have valid Durable Powers of Attorney. Also,
the need arises if the person acting as Agent under the client's
Durable Power of Attorney is either taking advantage of the
client, not providing proper care for the client, or misusing the
Medicaid is different from Medicare.
Medicare: Every person who pays into
the Social Security system during their lifetime is "entitled" to
Medicare benefits after age 65. Medicare pays for everyday medical
care such as Doctors visits and Prescriptions, but does not pay
for long-term nursing care.
Medicaid: The Medicaid program is a
form of welfare and therefore the applicant must apply for the
benefits and be almost totally indigent (out of money) in order to
Medicaid Planning is the process of planning for the
qualification for Medicaid benefits to pay for long-term nursing
care of persons over age 65.
The applicant is allowed to keep some assets and still obtain
Medicaid benefits, but most of those assets are subject to being
taken by the government after the applicant dies in order to
reimburse the government for the cost of the applicant's care.
This is called the Estate Recovery Act.
There are legal ways to become qualified for Medicaid benefits
and still shelter some assets for other family members, such as
Spouse or children. However, these techniques result in the
applicant being unable to receive benefits for a certain period of
time (called a "disqualification period"). Currently the
disqualification period is 5 years after the shelter is made.
Therefore, it is important to get qualified legal advice before
attempting to do any such sheltering of assets. And it is better
to get that advice well before the client is out of money.
ELDER ABUSE OR OTHER CONTESTED MATTERS:
Due to the complexities of these issues, Ms. Heller does not
handle them, but will refer such matters to an attorney who
handles estate litigation.
Click here to determine what happens at the initial
consultation and what you need to bring.