What is Elder Law? Today, people are living longer, which is great, but as we age, many people experience significant mental and/or physical difficulties that can come with age. And as we, and our parents, spouses and siblings grow older, we may end needing help with daily activities, or we may end up becoming a caregiver. Sometimes a few hours a week, or a few hours a day, or sometimes full time, all day, every day. And it’s usually not a smooth transition into becoming a caregiver, and typically begins with a phone call – from a parent, from a parent’s neighbor, or from the hospital. The phone call almost always comes when you least expect it or at a very inconvenient time.
- You might be in the middle of your work day at the office
- You might be travelling for work 3,000 miles away.
- You might be on vacation with your family
- You might be at your child’s soccer game
- You might live three states away from your parents
Any of these scenarios can be overwhelming, stressful and confusing.
- What happens to mom or dad now?
- Is it safe for them to go home again?
- How are they going to pay for assisted living?
- Does someone have power of attorney?
- Is Medicare going to cover their costs?
- If they run out of money, how will they pay for their long term care?
- When does Medicaid become the only option? How do we apply for Medicaid? How am I going to find five years’ worth of financial documents?
- Where do we find the time to get all of this done?
So if you get that call, and these questions start to sound family, one of your next phone calls should be to our office. We love the work we do on behalf of our clients and their families, and we would be happy to help you.
Our Elder Law services include:
- Assisting clients and families with in-home care, assisted living and nursing home placement, as well as other senior care alternatives.
- There are many options available to help someone who requires the assistance of another person with their daily activities. We will help you and your loved one navigate the various options to ensure that your loved one is receiving the best and most appropriate care.
Filing Medicaid applications
When someone requires the assistance of another person with their daily activities, including eating, dressing, walking and bathing, expenses can increase dramatically. As expenses increase and assets decline, you should be thinking about Medicaid and how it can assist your loved one with long term care. Medicaid can cover certain costs associated with care in the home, assisted living, and nursing home care. In order to qualify for Medicaid, a person must have certain Medical needs, and meet strict income and asset standards. We can assist you with the Medicaid application process for your loved one as follows:
1) Advising you on the basic Medicaid eligibility criteria from start to finish, including asset limits, treatment of income, and asset protection options.
2) Collecting and reviewing all of your parents’ financial documentation for the five years preceding the Medicaid application.
3) Preparing all financial and other documentation to be supplied to the County where the Medicaid application will be filed. This typically includes compiling the five (5) previous years’ of all statements and documentation for any financial accounts held during that 5 year time period.
4) Scheduling and attending the Medicaid application appointment, or Requesting a Medicaid application form from the County and completing the application form.
5) Corresponding with the County Board of Social Services, which processes the Medicaid applications, throughout the application process.
6) Corresponding with the community (assisted living or nursing home) where your loved one is residing throughout the Medicaid approval process.
When a parent, spouse or other close relative or friend lacks the capacity to make decisions for themselves due to dementia or some other cognitive or physical disability, you may need to begin making decisions for that person. In order to legally handle their affairs, there must be a Power of Attorney document in place that appoints you as the decision-maker. If there is no Power of Attorney document in place, and that person does not have the capacity to sign one, you will have to apply to the Superior Court of New Jersey to be appointed as that person’s Guardian.
What does the Guardianship process require?
- The application to the Court includes: Documentation – Order to Show Cause, Verified Complaint, Verification of Complaint, Certification of Plaintiff, Certifications from two Physicians; Certification of Service, Proposed Judgment, Court Filing Fee of at least $200.00;
- After the guardianship application is filed, the Court will then appoint an attorney for the person needing the Guardianship; This fee is paid by the funds of the person needing the Guardianship.
- Timeframe: Typically at least three months from the date the application is filed to a decision by the court, and this is if nobody objects to the application. The process can take up to a year or more if someone does object.
- A final decision on appointment of a guardian is made by the Judge with the input of the parties (family members; physicians; others with knowledge of the situation) and/or their attorneys.
When a person is still able to handle their own affairs, but that ability is limited, or the person acknowledges a difficulty in doing so effectively, a conservatorship (as opposed to a guardianship) is appropriate. A conservatorship is appropriate for: Someone with cognitive impairments that affect their ability to properly handle financial matters; an older person that is susceptible to undue influence from a family, friend or other person regarding their financial matters; and a person who suffers from a mental illness, or other cognitive disability, which results in financial instability and risk; are appropriate for Conservatorship.
This is a voluntary arrangement between a competent person (the Conservatee) who gives authority to another person (the Conservator) to manage his or her finances and other property.
A Conservatorship is a voluntary proceeding where the Conservatee is still considered legally competent, but simply requires the assistance of another person to maintain order over their finances. This arrangement cannot be imposed by a Court if a person objects to having a Conservator appointed for them. If a Conservator is appointed through the Court, the Court supervises the arrangement. The Conservatee can revoke the Conservatorship at any time, if the Conservatee is competent to do so.
Representing the person named as Power of Attorney for their elderly spouse, parent, family member or friend
When you are appointed as Power of Attorney for another person, you have a significant responsibility to undertake on that person’s behalf, and you are required under the law to act in that person’s best interest. We will assist you in ensuring that you are upholding your responsibility when it comes to matters like paying bills, managing bank accounts, and making financial decisions for your loved one.
Applying for Veterans Aid & Attendance (A&A) benefits for a veteran and/or their spouse
A&A is a benefit paid to veterans, veteran’s spouses or surviving spouses by Veterans Affairs (VA). The A&A benefit is paid in addition to a veteran’s basic pension. The benefit may not be paid without eligibility for the VA basic pension. A&A is for veterans or their spouses or surviving spouses who need financial assistance with medical expenses including in–home care, assisted living or skilled nursing care. A&A is a non–service connected disability benefit, which means the disability does not have to be a result of service. You cannot receive non–service and service–connected compensation at the same time. A&A benefits are paid to those applicants who:
- Are eligible for a VA pension
- Meet service requirements
- Meet certain disability requirements
- Meet income and asset limits
Reviewing long term care insurance policies, advocating for reimbursement for eligible expenses, applying for reinstatement of lapsed polices under qualifying circumstances
Long term care insurance policies can cover everything from home care to assisted living to medical supplies like wheel chairs and stair lifts. Many times, when a person has a long term care policy, they do not know when coverage begins and what medical services and supplies are covered under the policy. Other times, a person may forget that they have a long term care policy and or may have simply forgotten to pay premiums. In any of those cases, we will help you and your loved one review the policy, submit reimbursement forms, and apply for reinstatement if a policy has lapsed.
Reviewing annuities and other investments that may be subject to early withdrawal or surrender penalties; advocating for waiver of those penalties
In a situation where a loved one needs long term care, assets can dwindle very quickly. This may require your loved one to liquidate an annuity sooner than they had planned, subjecting them to early surrender penalties which can often times be severe. Many of those annuities have an option to have penalties waived if a person requires assisted living or nursing home care. Each annuity is different, and we will ensure that the annuity contract is carefully reviewed to understand the consequences of a withdrawal or surrender, and will advocate for you and your loved one to minimize or eliminate penalties wherever possible.
As our parents, grandparents and other relatives grow older, and as they begin to need assistance with one, two or many activities of daily living, including eating, dressing, and bathing, usually it is a family member that steps in to provide these services. Most often, the family member takes on the responsibility of taking care of their aging parent, grandparent or other loved one because they want to provide for their family, out of a sense of duty, due to financial considerations, or other reasons. In these caregiving situations, there is typical no legal or financial agreement in place, and the adult child or other family caregiver is providing their services at no charge. If the family member receiving the care is paying the caregiver, they usually do so in cash and sometimes by check, but there is no documentation in place stating what the payment was for. Those payments can create an issue for the care recipient if they need to apply for Medicaid benefits in the future.
The current Medicaid “look back” period for gifts and other transfers of assets for less than fair market value is 60 months, or 5 years. Those undocumented payments to caregivers could be considered transfers of less than fair market value, and may end up making the care recipient subject to a “penalty period,” where they would ineligible for Medicaid benefits for a certain number of months.
A good way to avoid a potential penalty period is to put the relationship between the caregiver and care recipient in writing through a personal service contracts, also known as a Caregiver Agreement. A Caregiver Agreement sets forth the details of the arrangement between the caregiver and the care recipient. Any payments made to a caregiver under a properly drafted Caregiver Agreement would not be considered gifts or transfers of less than fair market value, and would not be subject to Medicaid’s transfer penalty. We will guide you through the process of creating a properly drafted Caregiver Agreement.
Overall, elder law services typically include reviewing assets and income; assistance with finding other potential sources of income; reviewing admissions agreements; working with care managers and healthcare providers to ensure appropriate levels of care; communicating with admissions office and business office during admissions process and while residing in a facility.