Elderly & Aging Issues
Older people are faced with difficult, end-of-life decisions involving retirement, estate planning, and long-term care. Call 503-648-4777 during normal business hours (M-F 8:30am to 5:00pm) and speak with a highly rated Elder Law Attorney immediately.
Long Term Care Planning
The aging client cares about where he or she will live should incapacity occur. Everyone should plan for the possibility that at some point residency in a nursing home or an assisted living facility may be needed.
An elder law attorney will incorporate the client's residential goals into legal documents using the same basic documents as the estate planner, but enhancing the documents to create a plan that works if you become incapacitated.
The substantial cost of nursing home care for an elderly person can wipe away a family's savings and a family's inheritance plan.
Most people end up paying for nursing home care out of their savings until they run out. Then they can qualify for Medicaid to pay for long term care.
Careful planning with one of our attorneys can help protect your estate. Plans can include purchasing long-term care insurance or by making sure you receive the benefits to which you are entitled under the Medicare and Medicaid programs. Veterans may also seek benefits from the Veterans Administration.
Medicaid is a joint federal-state program created to assist people with limited income and resources to obtain better access to health care. Unlike Medicare or Social Security, people seeking Medicaid must satisfy an "income test" and a "resource test." An elder whose income or assets are too high will not qualify for Medicaid benefits.
Both the Federal and the Oregon Medicaid laws and rules are complicated, and constantly changing, making it virtually impossible for most people on their own to make the right financial decisions regarding a family member's Medicaid eligibility. In fact, seemingly simple and benign actions taken by Oregon families (such as transfer of assets to children or grandchildren) can result in long-term disqualification from benefits, unnecessary exposure to Medicaid estate recovery, or other costly consequences.
It is important to understand that assets which have been given away (or sold for less than fair market value) can cause a penalty and a subsequent delay in eligibility for the Medicaid.
When you apply for Medicaid, you must disclose all such transfers within the last five years. The worst possible course of action is the one most commonly undertaken - transfer of the elder's assets to immediate family members at the first prospect of needing nursing home care.
Because the rules are different for married couples, many of the planning opportunities are only available to them. However, both married and single elders may benefit from proper planning with one of our elder law attorneys. Some planning tools that an elder law lawyer may assist you with are:
Income Cap Trusts
An Income Cap Trust allows you to qualify for Medicaid even if your income is above the Medicaid limit. These trust beneficiaries are, but for their level of income, otherwise eligible for Medicaid.
Special Needs Trusts
A Special Needs Trust allows a parent, grandparent or guardian to provide funds for a disabled child without interrupting the child's eligibility for government aid. Setting one up should be done with the aid of an attorney.
Applicants for Medicaid and their spouses may protect savings by spending them on non-countable
assets. These expenditures may include:
Prepaying funeral expenses;
Paying off a mortgage;
Making repairs to a home;
Replacing an old automobile;
Updating home furnishings;
Paying for more care at home, or even
buying a new home.
Whether you are facing long-term care issues yourself or you have a family member who is, it is important to contact an attorney to help plan the right way.
Elderly persons and dependent disabled adults are a vulnerable group. Elder abuse occurs when a care giver, family member, neighbor, friend or other person takes advantage of, or hurts a senior. Elder abuse can include physical abuse, psychological abuse, financial abuse, sexual abuse, stalking, or neglect. The abuser is often someone close to the victim. When the abuser is a former or current boyfriend, girlfriend, spouse, or ex-spouse, a parent, child, or sibling, abuse of a senior may also be referred to as domestic violence. In many cases, elder abuse is a crime that can be prosecuted.
Until recently, there were few tools to make the abused elder whole other than criminal prosecution. Unfortunately, many busy District Attorneys would not prosecute or did not have enough evidence to meet the high level of proof needed for a criminal convection, leaving the victim without any recourse. But in 1996, the Oregon Legislature enacted several statutes to provide a civil remedy, including recovery of attorney fees, guardian fees, conservator fees, and court costs against those who abuse an elderly or incapacitated person.
If you feel that an elder has been financially or physically abused, call the police or Adult Protective Services immediately. Then call an elder law attorney. There are tools such as Restraining Orders to stop the abuse, and the attorney can sue the abuser for damages.
Simple estate plans usually consist of a will, a durable power of attorney, and a medical directive. For more complex estate plans, either a testemantary trust (One created by your will) or a living trust can be used. All estate plans are different, and need to be tailored based on your assets, your family, and your health. For a more complete description of the estate planning process and documentation, please go to our main Estate Planning page.
The special relationship between a grandparent and a grandchild can be one of great joy and importance for both parties. But sometimes an event such as a parent's death or divorce can pull families apart and break up these relationships. After such events, the child's parent or guardian may block any further contact with grandparents, who may fee compelled to take legal steps to maintain contact with the children they love. However, a recent the U.S. Supreme Court case ruled that unless there are allegations that a child's parents are unfit, the wishes of the parents should be given priority in resolving visitation disputes. This has severely curtailed the rights of Grandparents in these cases. But grandparents do still have some recourse. If you find yourself in this position, give us a call to see if we can help.
Health Care Decisions
Advance Medical Directive
Most individuals have strong feelings about who should be able to make medical decisions if they are unable and whether there are any circumstances in which medical care should be withheld. While it is important to communicate your wishes to your loved ones, an elder should execute an Advance Medical Directive to make it more likely that your wishes will be carried out after your incapacity.
Physician Orders for Life Sustaining Treatment (POLST)
The POLST form is a document which your doctor fills out and signs after learning your wishes about what end-of-life health care you want and don't want. It goes a step beyond the Advance Directive by turning your wishes concerning life-sustaining treatment into specific, written medical orders which can be understood and which will be followed by other doctors, nurses, emergency personnel ("EMTs"), and health facilities. A POLST form is usually recommended when you have a serious, perhaps life-threatening illness, and are faced with end-of-life decisions; you should ask your doctor about completing a POLST form. The POLST is often used for residents of long term care facilities and hospice facilities.
A Guardianship is a court-supervised proceeding which names an individual or entity to manage the care of an incapacitated person. For a more complete understanding of Guardianship, visit our probate and guardianship page.
Medicare is the federal government's principal health care insurance program for people 65 years of age and over. Medicare consists of four major programs: Part A, which covers hospital stays; Part B, which covers physician fees; Part C, which permits Medicare beneficiaries to receive their medical care from among a number of delivery options; and the recently-added Part D, which covers prescription medications.
For more on the basics of Medicare, Medicare.gov has a booklet designed for friends and family of Medicare members. To download the booklet, go here.
Nursing Home Issues
Long-term care issues loom large in the lives of elderly clients and their families. When clients become unable to live completely independently, they and their families must find answers to vital questions: What kind of care is appropriate? How can a person find high-quality care? What rights and obligations does the client in long-term care have? How does a person deal with problems that may arise in long-term care? Decisions may need to be made quickly, and the consequences of those decisions can have an enormous effect on the health, longevity, and functional capacity of the long-term care recipient.
An elder law attorney can be particularly helpful to navigate the Federal, State and local laws that govern issues related to long term care facilities.
The Social Security retirement program is in fact a group of related programs, each with its own
eligibility and payment rules: retirement, disability, survivors and dependents benefits. The
Programs included under the Social Security Act and related laws:
Hospital and medical insurance for the aged, the disabled, and those with end-stage renal disease;
Prescription Drug Benefit
Extra Help with Medicare Prescription Drug Costs
Supplemental security income;
Special Veterans Benefits;
Unemployment insurance; and
Public assistance and welfare services, including:
Temporary assistance for needy families;
Maternal and child health services;
Child support enforcement;
Family and child welfare services;
Food stamps; and
Harris VelÃ¡zquez Gibbens, P.C. is representing clients in Portland Oregon, and surrounding cities, for Elder Law Attorney Call Us Today at 503-648-4777.
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