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Archive for March, 2019|Monthly archive page

ELDER LAW

In Estate Planning on March 21, 2019 at 1:05 PM

By Sean Townsend and Deirdre Kelly Trotter

The law is composed of several specialized fields. Most people have likely heard of criminal law, family law, or business law and are aware of the particular types of issues each encompasses. Elder law is no different. Elder law is an area of legal practice that specializes on issues that affect the aging population. Elder law developed as a specialty because, with advances in technology and medicine, lifespans increased and there was a greater need for medical care, care giving, and financial management. The purpose of elder law is to prepare the elderly person for financial freedom and autonomy through proper financial planning and long-term care options. The main issues in elder law revolve around the regulation of federal benefits, estate and financial planning, and elder abuse.

Federal Benefits

There are numerous federal benefits that senior citizens in the United States are eligible for, such as Supplemental Security Income (SSI), Social Security, Medicaid, and Medicare. These benefits protect individuals from becoming deprived of the basic necessities of life after the age of retirement. SSI provides many citizens over the age of 65 with a minimum guaranteed income. Every state except Arizona, Mississippi, North Dakota, and West Virginia currently pays a state supplement to its disabled residents who receive SSI. However, some states pay a supplement only when a person with a disability lives in a certain setting, such as an adult care home or nursing home. Financial need determines eligibility for SSI. Social Security benefits, on the other hand, are not distributed based on need but on income earned during the individual’s life. Payroll taxes paid by workers and employees pay for Social Security benefits. Eligible individuals may choose to receive social security benefits starting at age 62.

Federal benefits also provide health insurance to the elderly population. Medicaid is a joint federal-state program that provides health and nursing-home insurance to seniors. Medicare is a federal program that covers acute medical coverage to individuals over the age of 65. Eligibility for Medicaid is based on financial need whereas Medicare is based on age.

Estate and Financial Planning

Estate planning is a familiar topic among elder law attorneys that involves the transfer of a person’s property to his or her intended beneficiaries after death. This often occurs through the probate process—a somewhat complicated and legal process. Estate planning usually involves a person writing a will stating how the person wants his or her property distributed after death. Estate planning also encompasses what to do when someone becomes incapable of caring for himself or herself. A person can designate someone to have a Durable Power of Attorney (DPOA) over his or her financial affairs and a Medical Power of Attorney over his or her healthcare decisions should he or she become incapacitated.

Another option in estate planning is to set up a trust to manage his or her property either while living or upon death. The establisher of a trust creates the trust and transfers property to the trustee’s control. The appointed trustee then administers the trust, often disbursing funds in accordance with the terms of the trust. In drafting these instruments, the elderly must consider the tax ramifications and probate laws. If a person dies without an estate plan, his or her property is distributed in accordance with applicable state laws. This is known as intestate succession. Approximately 60% of American adults do not have a will.

Elder Abuse

Each year, family members, caretakers, and strangers subject many senior citizens in the United States to mental, physical and financial abuse. Elder abuse is primarily regulated by individual state Adult Protective Services (APS) agencies. Physical abuse of elders includes beating, forced feeding and sexual abuse by a third party. An elderly person can also be guilty of self-neglect. All states have enacted some form of elder abuse prevention laws. Physical abuse and financial exploitation of elders are considered crimes and may be prosecuted as felonies. Additionally, some forms of emotional abuse and neglect may also result in criminal liability for the abuser.

Self-neglect occurs when an elderly person can no longer meet his or her basic daily needs as a result of impaired mental or physical capacity. Signs of self-neglect include unsafe or unsanitary living conditions, poor personal hygiene, weight loss, and unattended injuries. In a case of self-neglect, the state APS should be contacted to assist the elderly individual. If an elderly person’s self-neglect is affecting his or her finances or health care and he or she still has the mental capacity, the elderly person can sign a power of attorney naming a trusted individual as his or her agent to make financial and health care decisions on the elder’s behalf. If the elder is lacking mental capacity to sign a power of attorney, a guardianship or conservatorship may be required. A conservator or guardian is appointed and supervised by the court and is normally granted the authority to manage the personal, financial, and health care decisions of an adult who is not able to do so on his or her own.

Sources

Elder Law, JUSTIA, https://www.justia.com/elder-law/

What is Elder Law?, FINDLAW, https://elder.findlaw.com/what-is-elder-law/elder-law-basics.html

What Are State Supplemental Benefits for SSI Disability?, DISABILITYSECRETS, https://www.disabilitysecrets.com/dnewsblog/2010/01/what-are-ssi-disability-state.html Barbranda Lumpkins Walls, Haven’t Done A Will Yet?, AARP (Feb. 24, 2017), https://www.aarp.org/money/investing/info-2017/half-of-adults-do-not-have-wills.html