The Burton Law Firm, P.C. has over 14 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com
or David Torok at david@burton-lawfirm.com or Hannah Heinz at hannah@burton-lawfirm.com.
Elder Law
- What is elder law?
Elder law is a relatively new specialized field of law that deals with the issues faced by the fastest
growing segment of the US population, the elderly. It combines elements of estate planning, wills
and trusts, conservatorship, employment, personal injuries, health care planning and
medicare/medicaid planning. The Burton Law Firm, P.C. can help you with all of these areas of the
law.
- Who is a ward?
A ward is a person placed by court order under the care and supervision of a guardian or conservator.
- What can I do if a close relative of mine is doing bizarre things?
If a person has truly lost mental competence, and is unable to exercise rational control over his or
her property, the courts may appoint a "conservator" in a "conservatorship" proceeding. However,
courts are likely to respect a person’s wishes to control his or her own affairs unless convinced that
the person really needs to be protected against him or herself.
- What sort of evaluation is made?
A very careful determination of mental capacity must be made, and this typically involves at least
one physician, often a psychiatrist, and a lawyer familiar with elder law matters.
- How long does conservatorship or guardianship last?
Jurisdiction of the court in a conservatorship continues while the incapacity exists but ends at death.
The conservator or guardian has to make periodic reports to the court and petition the court for
additional authority under certain circumstances.
- Are conservators paid?
Yes. Typically a conservatorship allows the conservator to be paid for his or her services. The
conservator is also entitled to attorney fees to seek legal advice. In addition, the court will require
a conservator to purchase a type of insurance policy known as a "surety bond" to protect the
conservatorship estate. The costs and expenses of a conservatorship are paid from the property of
the person.
- How can an estate plan prevent a conservatorship proceeding?
An estate plan uses several tools which can prevent the court from gaining jurisdiction over your
affairs. These can include a directive to physicians, a durable power of attorney for health care, a
declaration of guardianship, a durable power of attorney related to property and a trust.
- What is a living will or directive to physicians?
This is a document used to determine if artificial life support systems are to be used or withheld.
- What is a durable power of attorney for health care?
This is a document used to provide authority to a person, in whom you have the utmost trust and
confidence, to make decisions regarding health care treatment when you are unable to provide
informed consent.
- What does a durable power of attorney for property do?
This enables you to authorize a person to act in your place and stead in the event of your incapacity.
The attorney-in-fact can manage your financial affairs without the need to have intervention by the
courts.
- What is a declaration of guardianship?
A competent adult may make a written designation of persons he or she wants to serve as the
guardian of his or her person or estate in the event the need arises. Unless the court determines that
the proposed guardian is not qualified or would not serve in the best interest of the ward, the court
is required to honor such a declaration.
- What is a trust or family limited partnership used for?
It is used to hold property. The trustees or partners manage the property held by either of these
entities. Both the trust and the family limited partnership continue to manage the property even if
you are incapacitated.
- What can be done if my parent is unable to do simple math or balance a checkbook?
Some people simply are not able to manage their own financial affairs. For these people, there are
a number of courses of action, depending on the mental state of the person and the laws of the home
state. A popular choice is to obtain a power of attorney.
- What kind of powers of attorney exist?
They are three types of power of attorney: (1) a durable power of attorney that remains in effect
during incompetence or other disability; (2) a standby power of attorney that is triggered when there
is an incapacity to manage affairs; and (3) a temporary power of attorney that generally applies only
if an emergency arises.
- Is the mechanism for a power of attorney different from a guardianship?
Yes. A guardianship is court directed. The guardian, a relative, friend, or heir, can be appointed by
the court to handle your affairs and well-being.
- If I am a senior citizen, do I have the right to refuse to consent to medical treatment?
Yes, if you are in full command of your senses and understand the pros and cons of treatment. You
make the decisions, not the doctor, even if by refusing treatment you may die or put your life in a
threatening condition.
- Can I use a living will to state my desires not to be kept alive in a “vegetative” condition?
Yes. However, despite its popular name, a living will is not actually a will at all. A living will is a
document spelling out what kind of medical care a person wants in the event of terminal illness and
incapacity to communicate one’s wishes. A living will can also spell out the kinds of treatment a
person does want or does not want in any circumstances. Any competent adult can make a living
will.
- Is a living will different from a ‘living trust’?
A living trust is very different from a living will. A living trust is a way to manage and control
property during your lifetime and to distribute it at your death.
- Which is better: a living will or a durable power of attorney for health care?
The Burton Law Firm, P.C. recommends both. Some health care providers are more comfortable
with one type of document than another. However, whatever document is elected, make sure that it
is consistent, describes treatment choices in a variety of situations, and names someone to make
decisions for you, should you be unable to make decisions for yourself.
- What happens if there is no living will or durable power of attorney?
If you have not planned ahead, the decision-making power passes to a family member or relative,
sometimes a close friend, the attending doctor, or a court-appointed guardian. With medical
technology advancing at a dizzying pace, should you not have had your wishes made known to
someone, someone will "step into your shoes" and make that crucial decision during life-and-death
situations or when you are not competent to make the "call".
- Does my family have liability if my advance directive instructs no heroic measures or life
support?
No.
- What should I do if I am interested in donating my organs after my death for transplantation,
teaching, or scientific research?
Fill out a donor card and put it in your wallet. Also make sure you communicate your wishes to your
close family members and friends.
- What happens if I want my organs to go to a hospital near where I live if the hospital cannot
accept the organs?
Generally speaking, the Uniform Anatomical Gift Act, which all states have adopted with some
variation, provides that they would go to another institution or person, factoring in need, biological
match, and geographic proximity.
- Can family members approve an organ donation for a deceased relative?
Yes. While it might be possible for one's next of kin to do so even if the deceased has not completed
a Uniform Donor Card, very often relatives are unsure about a person's wishes, or the one on the
scene may be afraid to make a decision without consultation with all the others; which sometimes
takes too long. That is why it is so important to tell everyone, ideally in writing, that you want to
donate your organs.
- What is elder abuse?
Elder abuse may be domestic or institutional. Domestic elder abuse refers to maltreatment of an older
person residing in his/her own home or the home of a care giver. Institutional abuse refers to the
maltreatment of an older person residing in a residential facility for older persons, e.g., a nursing
home, board and care home, foster home, or group home.
- What are the forms of elder abuse?
The four common kinds of elder abuse are: (1) physical abuse, the infliction of physical pain or
injury, e.g., slapping, bruising, sexually molesting, restraining; (2) psychological abuse, the infliction
of mental anguish, e.g., humiliating, intimidating, threatening; (3) financial abuse, the improper or
illegal use of the resources of an older person, without his/her consent, for someone else's benefit;
and (4) neglect, failure to fulfill a care taking obligation to provide goods or services, e.g.,
abandonment, denial of food or health-related services.
- If a parent is ready to consider various types of housing options for seniors, how can The
Burton Law Firm, P.C. help?
As a veteran law firm in elder law the attorneys with The Burton Law Firm, P.C. can guide you
through the potpourri of housing options –which come in all sizes, settings, and shapes - on the
market for seniors and the ones that are best suited for the parent.
- What kind of housing options exist for the elderly?
Housing options generally fall into three categories, based on level of services and/or care provided:
independent living retirement communities, nursing homes and assisted living facilities.
- What are independent living retirement communities?
These complexes are for seniors who are able to live on their own, but want the convenience of a
comprehensive service package. Meals, housekeeping, activities, transportation and security are
provided to active older adults.
- What are assisted living facilities?
This means that, in addition to housekeeping services, residents receive assistance in managing their
medications. and a helping hand with bathing, grooming and dressing. Settings can range from three
or more older people in a homelike setting, to dozens of residents in an institutional environment.
- What do nursing homes offer?
Nursing homes offer continuous round-the clock nursing care as well as other support services in a
single setting. Nursing homes are certified to provide different levels of nursing and medical
services, from custodial to skilled nursing (services that can only be administered by a trained professional).
- What if any other options exist?
Other options are continuing care retirement communities (also called life care communities), group
homes, share housing, adult foster care, home and community care, and elder cottage housing
(commonly known as ECHO housing).
- Is there any government regulation of nursing homes?
With the media assault on nursing homes and oft-told tales of patient neglect, nursing homes became
subject to stringent federal standards with the passage of the Nursing Home Reform Act (NHRA)
of 1987. The law covers many aspects of resident care and rights, staffing, the quality of care,
restraints, privacy, and record keeping. The law applies to all the various types of nursing homes who
receive funds under Medicaid or Medicare programs.
- What about state laws?
In addition to federal law, states have enacted their own statutes on nursing home care and services,
some a beefed-up version of the federal law. Typically, the state laws require a nursing home to be
licensed in order to operate, annual inspection, a procedure for handling complaints, prohibition on
discrimination, sanctions for violation, license suspension and revocation. Any reports of alleged
abuse or violations are investigated by the state regulatory agency.
- What are the remedies if a nursing home patient is being neglected?
There are many venues to voice grievances and complaints. First and foremost, make yourself heard
by speaking directly with the nursing home management itself. Each nursing home is required by law
to have in place a formal complaint or grievance system to deal with resident’s issues. If the
grievance mechanism does not resolve the issue, both federal and state law have created a
"watchdog" advocate program for nursing home residents, called the "long-term-care ombudsmen".
You can also complain to the state regulatory agency that governs nursing homes and residents. The
agency will investigate the complaint and impose sanctions if there are violations. If you reach an
impasse at that level or are hobbled by the sludge of recalcitrant bureaucracy, you can take private
legal action in state court.
- How do you prove a nursing home gave bad care?
It is very important, as soon as an injury occurs, to start to gather the facts as you are unlikely to get
much cooperation from the senior management of the nursing home and people start to change their
stories if they fear being involved in a lawsuit or investigation.
- What is SSI?
Supplemental security income. It is the basic federal safety net program for the elderly, blind and
disabled, providing them with a minimum guaranteed income.
- How is a person’s SSI calculated?
Although the Social Security Administration (SSA) administers the program, eligibility for SSI
benefits is based on financial need alone, not on how long you have worked or how much you have
paid into the Social Security system.
- If my mother is in a nursing home and I pay for the entire cost, can I deduct this on my tax
return?
You may deduct qualified medical expenses you pay for yourself, your spouse, and your dependents,
including a person you claim as a dependent under a Multiple Support Agreement. You can also
deduct medical expenses you paid for someone who would have qualified as your dependent except
that the person did not meet the gross income or joint return test.
- How do nursing home expenses match up against medical expenses for deductibility
purposes?
Nursing home expenses are allowable as medical expenses in certain instances. If you, your spouse,
or your dependent is in a nursing home or home for the aged, and the primary reason for being there
is for medical care, the entire cost, including meals and lodging, is a medical expense. If the
individual is in the home mainly for personal reasons, then only the cost of the actual medical care
is a medical expense, and the cost of the meals and lodging is not deductible.
- Can a difficult/disruptive patient be forced to leave a nursing home against his or her wishes?
Legally, a nursing home resident cannot be moved unless he or she endangers the safety or health
of other individuals, has medical needs that no longer can be met by the facility, has recovered his
or her health significantly that care is no longer necessary, has failed to pay for services, or the
facility closes.
- Do children have to pay for parents in nursing homes?
No. Children have no legal obligation to pay for their parents’ care.
- Can older employees be forced to retire?
Mandatory retirement is outlawed under the 1967 Age Discrimination in Employment Act.
Workers over 40 are protected if working in a business with more than 20 employees. However,
those under 40 years of age, or who work for smaller employers often are protected by state law.
- Can my boss offer older workers a voluntary retirement package without violating ADEA?
Yes. Typically, should you accept the package, you will be asked to sign a waiver of your right to
sue under the ADEA.
- If I am 55 and want to retire next year, can I receive my pension benefits then or do I have
to wait until I am 65?
It depends on the provisions in your plan. If your plan is a defined benefit plan, you may not be able
to start receiving benefits until age 65. Many plans, however, provide for payment of pension
benefits at an earlier age. Even if you are able to take early retirement, it often pays to consult a tax
lawyer and a highly qualified financial advisor to assess all the implications of early retirement.
- What about Medicare and Medicaid?
The number one issue facing older Americans is health considerations. Since most of us do not have
a personal, on-site, physician, we work with the federal Social Security and Medicare systems.
Whether you are entitled to benefits depends on if your circumstances and if you satisfy the system's
requirements.
- What is important about age 65?
In the Medicare program, people who are receiving full retirement benefits, those who have attained
age 65 with reduced benefits and those who qualify for social security disability benefits are eligible
for Medicare. Do not confuse Medicare with Medicaid, which is the health insurance system, run
by the state, for those people with low income and limited assets.
- Do I need Medicare if I am 65 and I am ready to retire but my employer is going to provide
me with benefits?
Yes. Medicare pays first in all situations unless you (or your spouse) are currently employed and
covered by an employer group health plan. In this situation, there will be no surcharge if Medicare
is refused until employment ceases. If you are not working, whether your employer provides benefits
or not, Medicare is primary and you should enroll. If you refuse Medicare at age 65 and again don't
accept Medicare when you retire you will risk a premium surcharge and possibly a delay in receiving
Medicare benefits.
|
|
