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General Legal Overview for Elders

General Legal Overview for Elders

A general overview for elders from a legal standpoint includes making financial, legal, and health care decisions if the elder person became incapable, to pass on property to heirs upon death, getting the best possible long term care if needed, preferably at home, and preserving your life’s savings for yourself and your family.

The first need is to have a durable power of attorney, a living will, and a HIPAA form for both spouses. Then, if one cannot sign, the spouse or other reliable family members will be able to make the necessary financial and health care decisions without having to go to court to have a conservator appointed, which takes time and expense. The person you choose to act for your should have your best interests at heart, have good judgement, and be willing to consult with medical and legal advisors if warranted.

The second need is to have a plan in place to pass on your assets upon your death. Depending on your family and asset situations that could be as simple as joint accounts, survivorship accounts, a will with or without special trusts inside them, or revocable or irrevocable trusts. There is no one size fits all, but that is where competent and experienced legal advice can be invaluable. An ounce of prevention is worth a pound of cure, and with all the family and financial issues that can arise after someone dies, a well thought out plan will accomplish what you want, even if an
heir has other ideas. 

The third need arises when health conditions require help with the activities of daily living, such as bathing, dressing, feeding/eating, transferring, toileting, or mobility. This can also include safety risks, such as falling, leaving stove burners on, or wandering. That is where sound advice on what level of care is needed, where to get it, and how to pay for it is critical. You may ask what that has to do with a legal overview. The answer is elder law attorneys with care coordinators on their staff can help with decisions on what level of care is best. Care can be at home if possible, or an assisted living, memory care or nursing home. A thorough knowledge of
what is available to fit a family’s needs is necessary so that the best decisions can be made. 

Along with knowing what care is available, the critical issue is how to pay for that care. Are Veteran’s Benefits available? Will the Connecticut Home Care Program for Elders pay? Will Medicaid pay? As a general rule, if steps are taken allowed by the law, the average husband and wife in Connecticut can keep all their assets and have a live-in caregiver in their home. Or they can get that care in a nursing home, if absolutely necessary. When faced with those choices, experienced elder care law attorneys can help immensely in the decision making. And if one spouse is healthy, the estate plan must be changed for that healthy spouse, because if the ‘healthy’ spouse dies, before the one needing care, a special type of will for the healthy spouse, can protect almost all of the assets.

A good example of this was a couple who had nearly $1,000,000 in assets. They both needed nursing home care, but the family knew that one spouse had terminal cancer with only months to live. With good advice, the money was put in the spouse’s name who had terminal cancer and that spouse did a special will with the trust inside it that only gave the surviving spouse the ‘statutory share’ which is the income from the one third of the assets. The spouse with cancer died a few months later and the other spouse went on Medicaid for several years. All the family had to do was pay one third (1/3) of the income toward care, and none of the principal. The lesson is that having the right documents in place and taking action in keeping with the laws and regulations can make a huge difference in receiving good care and protecting assets.
Attorneys Stephen O. Allaire (Of Counsel) and Halley C. Allaire are partners in the law firm of Allaire Elder Law.
Attorneys Stephen O. Allaire (Of Counsel) and Halley C. Allaire are members of the National Academy of Elder Law. Attorneys, Inc.
Allaire Elder Law is a highly respected, and highly rated law firm with offices in Bristol, CT.
We can be contacted by phone at (860) 259-1500 or by email.

If you have a question, send a written note to us and we may use your question in a future column.




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