The practice of Elder Law encompasses many different areas, some of which do not necessarily apply to just older individuals. While issues involving Medicaid, nursing home issues, and Guardianship proceedings are matters that most often concern the elderly, they are also matters that every person should consider discussing with an attorney to properly plan in case those services are needed in the future. Additionally, the setting up of Trusts, or putting in place a Power of Attorney, or Health Care Proxy and Living Will are also matters that all individuals should consider. All of these services are handled by this office and are discussed in more detail below.
Wills
Everyone NEEDS a Last Will and Testament so you can decide WHO gets your assets after you die. A Will also allows you to appoint a person you trust and can rely on to be your Executor/Executrix. This person is the one who oversees how your home, belongings and other assets are distributed. This person is the "enforcer" of your wishes and works with an Attorney to see that your Estate is properly "probated" and settled.
Your Will is also the instrument you use to determine who cares for your minor children and their money if you die. You can appoint a trusted family member or friend to become the guardian of your child until they become an adult. You can have separate people care for your child and another person to care for the child's money and expenses. Don't leave this up to chance; make sure your children are properly cared for and are raised the way you intended.
Medicaid and Nursing Home Care
Nursing home care is an enormous expense. The average daily expense for the Northeastern Region (which includes the Capital District area and all counties north to the Canadian border) is $255 per day, or $93,192 per year. Therefore, almost every individual receiving nursing home care must rely upon Medicaid to pay those costs. Unfortunately, to qualify for Medicaid services, there are very strict income and asset limits for the “institutionalized” individual (person receiving nursing home care) and the “community spouse”, which is just what that means, the spouse not residing in the nursing home.
This is a very complex area and the need for proper Medicaid planning, as well as thorough counseling from an attorney is critical. The are specific asset limitations a person must meet to qualify for Medicaid coverage for institutionalized nursing home care. However, not all services fall under these asset limitations, and an individual may be able to retain all or a significant portion of their assets/property and still receive Medicaid coverage for services they receive. To learn more about these matters, contact Nancy E. Stroud, Esq. of this office for a consultation.
Power of Attorney
Most people have heard of the term Power of Attorney but are not fully aware of what exactly it means. This is a document where you (Principal) give authority to one or more people (Agent) to make financial decision on the Principal’s behalf. A Power of Attorney can effective immediately, or you can execute what is called a “Springing” Power of Attorney, which become effective if and when you become incapacitated.
A common misconception is that a Power of Attorney will also allow the Agent to make health care decisions for the Principal. A Power of Attorney DOES NOT authorize the Agent to make health care decisions; only a Health Care Proxy, which is discussed below, allows a person to make those decisions.
A Power of Attorney is a very useful document in any planning strategy. However, it can also be a potentially damaging document if the wrong powers are granted, or the wrong person is given authority to act on the Principal’s behalf. There are many ways in which to protect the Principal, but it is extremely important that you consult an attorney to discuss the importance of having a Power of Attorney while protecting yourself at the same time. We can answer your questions or assist in drafting this document for you.
Health Care Documents
Everyone should strongly consider having a Health Care Proxy in place. This document authorizes your Health Care Agent to make medical decisions on your behalf if and when it has been determined that you are incapable of making those decisions for yourself.
Often times, a person will (or at least should) execute what is called a Living Will in addition to having a Health Care Proxy. A Living Will is a document which gives your Health Care Agent instructions on what medical treatment you want to receive or not receive in certain circumstances. It is an extremely helpful document for a Health Care Agent to have, and it will also give you some ease of mind to know that your wishes will be carried out at a point in time when you cannot express them. A Living Will, however, does not grant anyone authority to make health care decisions on your behalf - only a Health Care Proxy can grant that authority.
Guardianship
A Guardian is a person appointed by the Court to act on behalf of a person who has been determined to be incapacitated. A Guardian can be appointed to make decisions concerning the personal needs of the person, for the management of the person’s property, or both. Any person or agency who is concerned with the welfare of the person can petition the court to become the Guardian.
Perhaps you have a child who is mentally or developmentally disabled. If so, you may find that when your child reaches the age of majority that there may be issues with you making decisions on behalf of your child without some written authority to do so. This is an area where a Guardianship proceeding could become necessary.
A Guardianship proceeding can be a very involved process and the person requesting to be appointed the Guardian has the burden of proving that the person they are seeking Guardianship over is incapacitated. This is not an easy burden and therefore this process is one for which an attorney should be consulted for assistance.
If you would like to learn more about Guardianship, please contact LaFave, Latimer & Stroud, LLP at (518) 782-4900
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