FAQ on Elder Law
- What is Elder Law?
Elder law is the practice of law involving the counseling and representation of older persons and their representatives. It encompasses the legal aspects of health and long-term care planning and financing; public benefits like Medicaid, Veterans Benefits, and Social Security; alternative living arrangements and attendant residents’ rights; special needs counseling; decision making regarding capacity; conservatorships; and administration of the estates of older persons. Elder law attorneys involve, when appropriate, consultation and collaboration with professionals in related disciplines.
One of the most common concerns facing older individuals is securing appropriate long-term care either in home or in a skilled nursing home facility, without completely impoverishing the family for the cost of the care provided. In addition to helping families secure long-term care without impoverishing the family, elder law attorneys also assist their clients with the following matters:
- Prepare wills, trusts, and other documents so that property will pass efficiently to beneficiaries.
- Assist families in administering estates.
- Advise whether to buy long-term care and supplemental insurance, and evaluate proposed policies.
- Assist in applying for Medicaid, HUSKY, Medicare, and other government programs.
- Advise about Social Security, Social Security Disability, and other public and private retirement benefits.
- Make sure the nursing home patient's rights are respected.
- Respond to quality of care complaints.
- Represent clients in disputes involving nursing homes, Social Security, Medicare, Medicaid, or managed care.
- Help address instances of elder abuse or fraud.
- Do I need an elder law attorney?
You may benefit from the services of an elder law attorney if you:
- are creating or updating your estate plan, or
- have questions about long-term care planning and asset protection, or
- are considering transferring title to your home or other assets to a child or other
person, or adding another person’s name to the title of your home or accounts, or
- need help with obtaining Medicaid, Veterans benefits, or Social Security Disability Income or Supplemental Social Security, or
- need to obtain the appointment of a conservator of a person who cannot care for himself or herself or who cannot manage his or her finances, or
- have questions about your liability for nursing home expenses of a family member, or
- have concerns about an elder or disabled person who is at risk.
Attorneys who work primarily with the elderly appreciate the complex financial and social realities and can address their clients' legal issues in a comprehensive way. They often work with other professionals such as accountants, financial planners, and geriatric care managers to ensure a coordinated plan.
- What is estate planning?
Estate planning involves planning for both incapacity during your lifetime and planning for the disposition of your assets in the event of your death. If you became incapacitated, who would make medical decisions for you? Who would pay your bills? If you were to die, who should receive your assets? Who should be in charge of making sure that your estate is managed properly? Are estate taxes an issue, and if so, are you taking advantage of all available estate tax exemptions? Is avoiding probate important to you? These are some of the many questions that may be answered in the context of an estate plan.
Some clients will say “I don’t need an estate plan, since I don’t have an estate to plan.” By this they mean that since they don’t feel like they have significant assets, they don’t need an estate plan. However, it’s not just about money. Many elder law professionals will tell you that the most important part of an estate plan is planning for incapacity (signing a Durable Power of Attorney and Appointment of Health Care Representative). The person you appoint to handle your financial affairs and make your medical decisions upon your incapacity can have a very significant impact on the quality of your life.
Even clients who don't feel "rich" frequently find that significant assets will pass in the event of their death. They may not feel rich now, since their main assets are their home and an Individual Retirement Account, but from the future beneficiary's point of view, significant assets are involved, and proper planning is important to mazimize the benefits to your beneficiaries.
- Do I need a Will?
Yes, it is generally recommended that everyone have a Will. A Will is used to accomplish three things: (1) to direct who will receive the property you own, individually, at your death, (2) to name the person you want to be appointed Executor of your Estate after you die, and (3) to name a guardian for your minor children. If you die without a will, an Administrator will be appointed by the Probate Court to distribute your property to the persons entitled to it according to the laws of the state where you die (your "heirs"). That result may be different than what you have in mind, especially today in the context of the modern family where multiple marriages and divorces, non-marital children, premarital and business agreements and other issues significantly complicate the desired end result.
- What is a Durable Power of Attorney?
A power of attorney is a document by which you (the "principal") authorize a person (the "attorney-in-fact" or “agent”) to manage your assets and financial affairs during your lifetime. A power of attorney is “durable” if the agent's authority continues if you become incompetent.
Powers of attorney are used to avoid the need for conservatorship proceedings in the Probate Court if you become unable to manage your financial affairs yourself. The agent can do whatever the principal may do - withdraw funds from bank accounts, trade stock, pay bills, cash checks, sell real estate – unless the power is limited in the power of attorney.
Typically the agent's authority to act is either immediate or springing. An immediate power of attorney gives the agent authority to act which is effective immediately after you sign the document. A “springing” power of attorney is only effective if or when you become incompetent. Most springing powers of attorney require one or more physicians to certify that you are incompetent.
It is crucial to name someone you trust completely as your agent. The durable power of attorney creates a principal-agent relationship, which means that the agent still reports to you, so long as your are competent. The power of attorney should describe what, if any, power your agent has to make gifts of your property.
- What is an Appointment of Health Care Representative?
An Appointment of Health Care Representative is a document in which you name a person (the “health care agent”) to make health care decisions for you if you are unable to make or communicate them yourself. The health care agent has a duty to follow your wishes even if the agent does not agree with them. If your health care agent does not know your wishes, the health care agent must determine what is in your best interest and act accordingly. You can revoke your Appointment of Health Care Representative at any time if you have the capacity to do so.
An Appointment of Health Care Representative is used to avoid the need for conservatorship proceedings in the Probate Court in the event that your doctor decides that you are not able to make medical decisions on your own. If you do not have an Appointment of Health Care Representative , the Probate Court would appoint a conservator of your person to make those decisions for you.
Unless specifically limited by the document, your health care agent’s authority extends to obtaining medical information and making all medical decisions on your behalf, including decisions regarding the use of life-sustaining medical technology. It is important that your health care agent have as much information from you as possible to assist him or her in making those decisions. For this reason, some people like to sign so-called "Living Wills."
- What is a Living Will?
A living will is a document in which you express your wishes concerning the use of life-sustaining medical treatment in the event of a terminal illness. Living wills provide some indication of one's wishes regarding "pulling the plug" should that decision need to be made by your health care agent.
- Who pays for long term care expenses?
The average cost of nursing home care in the State of Connecticut is $12,604 per month (as of 7/1/17) according to the Connecticut Dept. of Social Services. While Medicare and supplemental health insurance plans cover most of the medical expenses of an acute illness, those programs provide only minimal coverage of nursing home care. Absent long-term care insurance, the only other options for payment of nursing home expenses are (1) private payment, or (2) Medicaid. Understanding the Connecticut Medicaid rules can help you to maximize the use of your assets for you and your family.
- Do I qualify for Connecticut Medicaid coverage of long term care expenses?
Financial eligibility for Medicaid coverage of long term care expenses is based upon:
- financial responsibility,
- countable income and
- countable assets.
When one member of a married couple is a resident of a medical institution, and is expected to remain in the facility for 30 days or more, the total value of countable assets of both spouses is determined, and a community spouse protected amount ("CSPA") is established, in determining the financial eligibility of the institutionalized spouse.
The income of the spouse at home is not counted in the determination of eligibility of the institutionalized spouse. In some cases, some portion of the income of the institutionalized spouse may be diverted to support the spouse at home.
When both spouses live in the same long-term-care facility, the income and assets of each spouse are evaluated separately to determine eligibility of that spouse.
In order to qualify for Connecticut Medicaid coverage of nursing home care, countable assets must be under a certain limit. For a single individual, that limit is $1,600.00. For a married couple, that limit is $1,600 plus the applicable CSRA.
The term "countable assets" generally includes all assets to which the applicant or the spouse would be entitled whether or not these assets are actually received, when failure to receive the assets results from the action or inaction of the applicant, member, spouse, or person acting on his or her behalf.
Countable assets generally includes:
- Bank accounts,
- Certain retirement accounts,
- The cash value of all life insurance policies if the total face value of all policies having a cash surrender value is $1,500 or more,
- The equity value of all vehicles other than one vehicle per household used by a member of the couple or a member of the couple’s household,
- The value of real estate other then the principal residence (subject to certain limits) and certain business property,
- The principal value of a trust established by a member of the couple or of which a member of the couple is a beneficiary may be countable, and
- Annuities which may be converted to a lump sum are countable assets.
Once the asset test is met, the countable income of the individual in the nursing home is determined in order to calculate the applied income. The applied income is the amount that must be paid to the nursing home each month.
The countable income includes earned and unearned income, less certain business expenses and standard income deductions. General income deductions include: (1) a personal needs allowance ("PNA"), (2) a spousal monthly maintenance needs allowance, (3) a utility allowance, (4) a shelter allowance, and (5) health care coverage and incurred medical and remedial care expenses.
FAIR HEARING ADJUSTMENTS
In certain cases, an additional deduction may be applied to the institutionalized spouse’s income in order to increase the income of the community spouse to meet the minimum monthly maintenance needs allowance. This additional deduction may be granted by a hearing officer following an appeal and a fair hearing. If after this adjustment, the fair hearing officer determines that the community spouse’s income is still too low, then the hearing officer may increase the community spouse’s asset allowance.
DISQUALIFICATION RULES AND THE LOOK-BACK PERIOD
The Connecticut Medicaid program rules discourage people from giving away their assets to qualify for Medicaid coverage of nursing home expenses. These rules deny payment for nursing home care to an otherwise eligible applicant who has given away assets that could otherwise have been used to pay for care. Payment is denied for a period based upon the value of the gift. This is called a "penalty period." The disqualification period starts when the applicant is otherwise financially eligible for Connecticut Medicaid coverage of nursing home expenses.
When an application for Medicaid is submitted, transfers of resources must be investigated. The period of this investigation is referred to as the "look-back period," which begins on the first date the individual is both a nursing home resident and has applied for Medicaid. The look-back period is 5 years. Not all transfers and gifts cause a penalty period. Special rules apply to certain annuities and certain transfers to or trusts for disabled persons and spouses.
- Do I need an attorney to file a Connecticut Medicaid application?
While an attorney is not required to file an application, it is frequently advisable to at least consult with an elder law attorney prior to spending all of your assets on nursing home care or filing an application for Medicaid. While assistance may be available from the nursing home or from certain service agencies, an elder law attorney provides more than simple assistance with filling out the application. He or she may advise you on planning opportunities which may be available to maximize the use of your assets, or strategies available to address issues which could interfere with eligibility, such as trusts or disqualifying transfers. There also may be other legal issues which should be addressed at the same time, such as updating your Will, Durable Power of Attorney, and Appointment of Health Care Representative, or reviewing the nursing home contract.