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 Planning".
ESTATE PLANNING FOR OLDER CLIENTS:
Durable Powers of Attorney and Living Wills:
Merely due to their age, clients over the age of 65 are more likely to need Durable Powers of Attorney and Living Wills. These documents need to be updated regularly to reflect 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 Decisions.
Most clients do not wish to give someone else decision making authority while they are still competent. Therefore, a Power of Attorney can be what is called "Springing", which means it does not "spring into effect" until the client becomes incapacitated.
All Powers of Attorney should state that they are "Durable", which means they will remain valid even after the client becomes incapacitated.
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 themself, and two Doctors have certified that there is no reasonable chance of the client recovering from a life-threatening condition.
GUARDIANSHIPS/CONSERVATORSHIPS:
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 client's funds.
Ms. Heller will prepare the documents necessary to have a Court appoint a Guardian and/or Conservator for a client only if it is uncontested. If the appointment is contested (objected), Ms. Heller will refer the matter to an Attorney who handles estate litigation.
MEDICAID PLANNING:
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 qualify.
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. Usually these techniques result in the applicant being unable to receive benefits for a certain period of time (called a "disqualification period") which is determined by a formula calculation.
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.
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