What is Elder Law?
There’s a myriad of laws in the United States, designed to protect seniors as they decline, both mentally and physically. The broad topic is called elder law, and it covers a variety of issues, from health care to social security to guardianship to fraud, and much more. It also deals with wills and estate planning, and what happens to your assets after you’re gone. It can be a complicated topic, but it’s important to know about as you get older. Here are some of the most important issues to be aware of.
You never know what might happen to you down the road, so it’s best to be prepared. You may be fine now, but if you ever become incapable of handling your own affairs, it’s important that you and your loved ones have a plan for what to do. Here are some advance directives you can take while you’re still of sound mind and body, against the day that you might not be.
As a person gets older and begins losing their faculties, it’s more difficult for them to make important decisions regarding their own lives. They might have a child, a spouse, or a trusted friend to advise them on these decisions, but as they decline further, it may be necessary to give that other person complete control over their lives and affairs.
Power of attorney (or durable power of attorney) is a legal document that authorizes someone to act on behalf of another person in various matters, such as financial, legal, etc. This can include things such as paying bills, managing property, and making medical and end of life decisions. There are several different types of power of attorney that can be granted:
This gives a guardian complete control over their charge’s affairs. They handle all of the person’s money and other assets, and can make any and all decisions on their behalf, including things like purchasing life insurance for them, operating their business for them, speaking for them in court, and more. It’s usually given when a person no longer has the physical or mental capacity to make decisions for themselves or act on their own behalf.
This allows a person to give control of one specific aspect of their lives over to someone else, but retain autonomy in all other areas. It’s given when that person is no longer capable of doing specific things, but still retains their general mental faculties.
This specifically grants a person the authority to make medical decisions on someone else’s behalf. This can include things like medications, surgeries, and other procedures, as well as what actions should be taken during a person’s last days.
For a senior whose physical and mental health are declining, it can be a good idea to make arrangements in advance to hand some form of power of attorney over to someone you trust when you’re no longer capable yourself. Doing it voluntarily is much easier for all involved than having to go to court and have them declare you legally incapable.
A living will is similar to healthcare power of attorney, in that it deals with a person’s medical issues after they’re no longer physically or mentally able to make important decisions for themselves. However, while healthcare POA grants someone the authority to act as an agent on someone else’s behalf and make those decisions for them, in a living will, the senior writes down their medical wishes themselves, while they still have their faculties, in anticipation of the day when they no longer do.
There are forms you can fill out which ask you questions about what, specifically, you want done in various medical situations, such as if you need long term care or lifesaving surgery, or are in your final days. Different states have different requirements for filing a living will, so talk to an attorney who can help you through the process.
Do Not Resuscitate (DNR)
A DNR order states that no immediate lifesaving measures are to be taken on your behalf. For instance, if you suddenly stop breathing, or your heart stops, a paramedic should not perform CPR. It also means you do not wish to be kept on life support. While a living will is filed by an attorney, a DNR comes from your doctor.
Guardianship or Conservatorship
If an elderly person has not given power of attorney to someone else, but they clearly no longer have the capacity to act on their own behalf, then a guardian or conservator can be appointed for them. The court appoints a trusted family member or friend to make decisions on your behalf, such as financial and medical. If no family members or trusted friends are willing or able to take on that responsibility, then a professional guardian may be appointed instead.
Fraud & Abuse
Friendly Grandparent Syndrome
This refers to the fact that elderly people tend to be more trusting, which makes it easier to take advantage of them. This is particularly taken advantage of by telemarketers and phone-based scammers. A person who seems charming and helpful on the phone can convince an unsuspecting senior to buy a product or service for far more than it’s worth—or simply to provide their credit card and bank account information, which can be used to drain their savings and commit identity theft.
Statistics show that seniors are less likely to report fraud. Often, they don’t realize that they’ve been scammed. And if they do, they might be ashamed to tell anyone. Falling for a scam could be evidence that they’re no longer able to care for themselves and need an appointed guardian, making many seniors reluctant to admit they’ve been duped. Or even if they want to report it, they may not know how or where to do so.
To protect yourself against fraud and elder financial abuse, make it a point never to give out financial information over the phone. Never pay a fee in order to collect winnings you’re supposedly entitled to. Don’t sign any documents without first consulting with an attorney or a financial expert. And if someone tells you that a particular product or service is necessary or required, always get a second opinion from someone you trust before moving forward.
Friendly grandparent syndrome is not just about trusting others when they call, but about wanting to be helpful. For this reason, a lot of scams against the elderly involve fake charities or fundraising efforts. This type of fraud is particularly prevalent after natural disasters. A scammer will call and pretend to be collecting money to help the victims. And unsuspecting seniors will give them money in an effort to be helpful.
To guard against this type of fraud, only give to charities that you know and trust. If someone calls claiming to be raising funds for a particular organization, check them out online first and, once they’ve been verified, give directly through the official website, rather to someone over the phone.
It also helps to ask questions. Who, exactly, will benefit from this donation? How will the money be used, and what specific efforts is the charity making towards its goals? Scammers often use sad stories to prey on a senior’s sympathies, but when it comes to actual details about how the money is spent, or what actions the charity is taking, they may be lacking.
Home Repair Scammers
Does this scenario sound familiar? Someone comes to your door claiming to be a contractor, or to be providing a particular service for your home. The outside of your house looks shabby, but they can repaint it. Your driveway is cracked, but they can repave it. They have a special introductory offer for people in your neighborhood, but only if you act right now.
This is how home repair scammers take advantage of people all over the country, particularly seniors. They may also call and offer a specific service, such as cleaning your air ducts—or simply ask what kind of repairs or improvements you’d like done around the house, and if they can come by to give you an estimate.
They’ll quote you a price that sounds reasonable. But then, once they’ve had a closer look at your house, they’ll find all sorts of other problems, which could threaten your safety and must be taken care of immediately—and which will cost thousands of dollars more. They may also simply do subpar work, or sell you an extended warranty which they then refuse to honor when the job doesn’t hold up.
Here are some things you can do to guard against home repair scams:
- Never hire a company that cold calls you, whether on the phone or coming to your door. If you need repairs done, go online and do your own research. Check Angie’s List and the Better Business Bureau to see if a company is reputable. Look for references, customer testimonials, etc.
- Beware of anyone who offers to do repairs on the spot. Ask them if you can have a business card, and research them online. Often, scammers won’t have a business card to give you. This is a huge red flag.
- If a contractor or repair person tells you that there’s more work to be done than originally anticipated, or that you need some costly extra service, don’t agree to anything until you’ve gotten a second opinion.
- If someone comes to your door, don’t let them into the house, even if they ask. Some scammers will pretend to be offering some vital service, but are really taking the opportunity to case your house to burglarize later—checking for vulnerable entry points, valuables in plain sight, etc.
If You Get Scammed
So what if, despite all your precautions, you do end up getting scammed? What recourse do you have? What can you do? Here are the steps you should take.
- File a Police Report. Not only will this help in investigating and eventually catching the parties responsible, but it will also make it more likely for you to recover the money that they scammed from you.
- Talk to Your Bank and Financial Institutions. If you were the victim of identity theft, or otherwise provided the scammers with confidential financial information, then notify your bank, your credit card companies, etc., so they can issue you new cards, recover your money, and protect your accounts from further fraud. If you gave someone your social security number, or suspect they may be able to obtain it, then also contact the Social Security Administration.
- Contact the Better Business Bureau. Give them the name of the company that scammed you (or the company they claimed to be from), as well as details of the incident, so that they know what the situation is and can help others to avoid it in the future.
- Tell Your Family. You may be reluctant to do this. As we mentioned earlier, it’s easy to think that falling for a scam will mean your loved ones will decide you’re unfit to manage your own affairs anymore. But in fact, recognizing that you were a victim of fraud and taking steps to do something about it is an indication that you’re still in possession of your faculties.
Statutes and Legislation
We’ve talked a lot about how to protect yourself, whether it be from fraud, or from your own eventual decline. But what does the law say with regards to aging and related issues? Let’s take a look.
U.S. Senate Special Committee on Aging
This committee was founded in 1961, with the goal of examining issues affecting people as they get older, and taking steps to address them. They aren’t able to enact legislation themselves, but they can make recommendations. In particular, their research into health insurance was one of the factors that led to Medicare’s enactment in 1965, and they’re constantly working to improve it. And they’ve been integral in reducing age discrimination when it comes to employment and other matters. Some of the issues they look at include:
- Medical and health insurance issues
- Income (e.g. Social Security)
- Caregiving and other assistance
They also regularly hold hearings on important issues affecting the elderly, from diseases like diabetes and Alzheimer’s, to preventing fraud and scams against seniors, to social security benefits and financial independence, to the rising cost of prescription drugs, and much more. And their website has copious resources on these and other issues, so that seniors can stay informed on things that affect them.
Fraud, Waste, and Abuse
These three issues are extremely important, particularly when it comes to seniors, which is why the Office of the Inspector General for the Department of Defense is committed to investigating and preventing them.
- We’ve already covered fraud in a practical sense of how to avoid it and what to do, but what about the legal aspect? It’s a broad term, which can be difficult to define, but the general legal description is any illegal act in which someone misrepresents themselves or their intentions, in order to obtain something of value from someone else. This may mean saying something that isn’t true, or deliberately withholding information that could impact a person’s decision.
- While fraud involves being exploited by a private person or organization, waste is about being exploited by agents of the government. If a person paying taxes is not receiving services that they’re entitled to, that constitutes waste. With regards to the elderly, it’s most commonly applied to healthcare. Waste of resources can cause over inflation of Medicare and Medicaid costs. While problematic, it’s not usually a direct violation of the law. Still, it’s something that the government tries to audit and prevent, wherever possible.
- A wide range of acts and circumstances are covered under the umbrella of abuse, including both fraud and waste. The broad definition is any behavior towards another person that would be considered improper or lacking by a reasonable observer. Abuse can be physical, mental/emotional, financial, or something else. Most often, it involves someone taking advantage of their authority over another person to do things to them, take things from them, or force them to do things against their will. It can involve doing something to them, such as taking their money or inflicting bodily harm, or not doing something that they should be doing (i.e. negligence), such as failing to give an elderly person unable to care for themselves the food or medication that they need.
Trusts & Estates
One of the most important legal issues as you get older is what happens to your estate after you’re gone. Even if you don’t have very much, it’s important to lay out a specific plan for your assets. Otherwise, the people who survive you could end up embroiled in legal battles and red tape for years afterwards.
Estate Planning Law
Estate planning involves more than just a will. It also covers many of the issues we’ve already covered, such as DNRs, power of attorney, and living wills, as well as tax issues related to your property, and more.
Most estate law varies from state to state, so to find out what you need to do and make sure these issues are all dealt with properly, talk to a lawyer with experience in estate planning. They can help you through all of the important decisions, make sure everything is legally binding, and save your heirs as much hassle as possible after you’re gone.
It’s also important to appoint an executor for your will. This is the person who will oversee the distribution of your assets and make sure that your final wishes are honored. Other duties of an executor include:
- Filing a copy of the will with probate court
- Managing any incoming funds and paying any remaining bills
- Paying any taxes or outstanding debts
- Notifying banks, credit card companies, government agencies, and any other institutions of the death
Obviously, for issues that involve payment, the money comes out of the estate, rather than the executor’s pocket. In fact, often, an executor will be paid for their services. If the money can’t be found to pay off the deceased’s final debts, then a portion of their property may need to be sold or auctioned, even if it was previously promised to someone else.
In some situations, it may behoove you to put your assets into a trust. That means that a trusted third party is given care of your assets until such time as your loved ones are able to claim it. This can help your heirs to avoid probate after you die, which is often a long and drawn out process that delays them getting what you’ve promised them. There are several different types of trusts:
- Revocable Living Trust. A living trust is very similar to a will. You put your assets into a trust, and name various beneficiaries for certain things/amounts. In a revocable living trust, yourself are usually the trustee, to manage the assets in whatever way you see fit—i.e. to live on them, as you normally would. Since you’re the trustee, you can also make changes to the trust as you see fit—e.g. change the beneficiaries and what they’re entitled to. You also name a successor trustee, who basically acts as an executor when you die, and distributes your assets according to your wishes. The only difference between this and a regular will is that it can all be done immediately, rather than waiting for probate.
- Irrevocable Living Trust. In an irrevocable living trust, someone else is named as trustee of your assets. In essence, you give your heirs their inheritance now, instead of after you die. By reducing your estate’s value in this way, you can also greatly reduce the amount of taxes you have to pay on it. You can choose to keep a portion of your assets out of the trust, for you to live on for the rest of your life, or the appointed trustee can provide for you out of the trust. Whatever you decide, though, remember that, unlike a revocable trust, an irrevocable one can’t be undone.
- Testamentary Trust. If one or more of your loved ones are minors and not yet fiscally responsible, you can make arrangements to place their portion of the inheritance into a testamentary trust after you’ve died. You can then name the heirs in question as beneficiaries, but stipulate that they cannot receive the assets until a specified time, such as their 18th
- Special Needs Trust. If one of your heirs is disabled, a special needs trust allows you to leave them part of all of your estate without negating their social security or Medicaid benefits.
Elder law can be a complicated matter—particularly if you yourself are in decline. However, it’s essential for you to know what your rights and responsibilities are: what you’re entitled to, and how you’re protected. To understand elder law better, and how it affects you, talk to a lawyer, who can guide you through the ins and outs and help you make all necessary arrangements, both now and after you’re gone.
Elder Law Questions and Answers
Answers to the most common queries lawyers encounter about elder laws. As we grow older, many questions and concerns arise about how to live the rest of our lives. Where to live if you become frail, who will care for you, how to pay for care, how to turn over your assets, and so much more. Because the population of older adults is growing fast In the last decade, laws are also built to assure their rights and take care of their concerns. The elder law was made for senior citizens, especially those with special needs, who wants help in managing their medical and financial circumstances while growing old. Regardless whether you need to personally understand your rights, or just want to know more about the legalities of end-of-life planning, it always best to ask questions from the experts – the lawyers of Elder Law. One of which is the author of ElderCare Ready Book, Stuart Furman, Esq. from California. Based on Furman’s years of experience, these are the 5 common elder law questions they get from older adults who want answers.
Q: Can I defend my properties, assets, and estate from being taken away by Medi-Cal (Medicaid in California) when I die?
A: Most people in California believe that if they get Medicaid, assets they didn’t include in their application are also exempted from being recovered by the Medicaid recovery statutes.
This is a “false impression,” based on Furman. Based on his experience, people often confuse the written words in the Medi-Cal document. “One of the common misconceptions people have is they… confuse eligibility exemptions with recovery exemptions,” said Furman. If a person’s house is exempted, meaning, not included in determining eligibility, it is not exempted from recovery. Because most people are confused with this, they apply for Medical recovery lien for their houses thinking those were not included in the program. The worst part is, local Medicaid offices do not usually give advice on protecting assets. But Furman says there are various legal ways to save your houses from Medicaid lien and other liens in your state. Consulting with an elder lawyer about it is a must.
Q: Can I afford long-term care for the remaining years of my life?
A: Answering this frequently asked question is not easy. None can’t make money “magically appear,” says Furman.
But according to him, you can afford it if you assess all your possible needs long before you need long-term care. Lay out all your resources and from there, develop a way how to stretch those funds to last your lifetime. Consider the following in when determining whether you can afford long-term care for the rest of your life.
- Your age. How long do you expect to live? If you maintain your healthy lifestyle and do not have existing and chronic medical condition, you may expect more years but if not, expect lesser.
- Your ailments. Depending on your medical history, current illness or disease you think you’ll most probably develop in the coming years, research for different kinds of care facilities, whether it be nursing or home care, and know their price range.
- Your cost of living. Compute how much you’ll spend if you choose to live in a skilled nursing, assisted living, or remain in your home and hire home health aides.
- Your income generation. Even if you retire, you can still generate revenue by selling your insurance policy, reverse mortgages, selling your home, or earning extra income doing some freelance work.
- Your family’s support. Ask if your grown kids or relatives can help with your long-term care expenses or not. Do not handle this alone. It’s best if you can rely on someone when the times comes you can no longer be self-reliant.
Q: If I make a trust, can I modify it whenever I need to?
A: If you create a trust, you can also change it, according to Furman. An older adult can make two kinds of trusts. First is the revocable or amendable trust, which is a trust you can alter, modify, change and revoke. Second is the irrevocable trusts that you cannot revoke or change unless it says you can. Furman says that there are instances in which “irrevocable trust” can be changed and repealed. Ask your local lawyers on elder law for more information.
Q: If I make a living trust, does this mean I’m giving up control over my assets?
A: Furman says you are not giving up control even if you have a living trust. The switch of control occurs only when you die, or you become incapable of handling your own affairs.
“You are in control until death,” said Furman. Only then will a living trust be disseminated to your beneficiaries. In the instance that you become incompetent, the trustee successor you placed in your living trust will be the one to take over your “trust without court involvement,” Fruman added.
Q: Is it OK to make a living will without probate?
A: Most people confuse the meaning of “living will” and associate it with “living trust”. However, Furman notes that both legal documents are not the same. When a person makes a living will, they are leaving behind directions for people close to them to “pull out the plug” in the instance that the creator of the will becomes comatose. On the other hand, a living trust a legal tool a person can use to evade probate. However, every state has different regulations and rules about it. It is recommended to consult local attorneys about your situation to be sure.