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Frequently Asked Questions About Elder Law

It is estimated that nearly four million Americans suffer some form of mental dementia, most commonly Alzheimer's Disease. That figure is expected to triple by 2050. With the onset of dementia comes the growing need for assistance with such common daily tasks as dressing and feeding oneself, administering to even modest financial matters, and providing for one's own medical care. If you have a loved one who has difficulty making sound financial and lifestyle decisions, contact an experienced elder law attorney to discuss the possibility of establishing a guardianship or conservatorship to aid your loved ones.

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Frequently Asked Questions About Elder Law

Q: If I want to stay in my own home, do I have other options besides a nursing home?

A: Yes. If you want to stay in your home, you have options that may be less expensive and stressful than a nursing home. You could obtain a reverse mortgage on your home, long-term care insurance or support through federal or state funding sources. A family member, friend or paid caretaker may be able to help you with personal care. If you want to stay in your home, an experienced elder law attorney can advise you about your options.

Q: What are Medicare and Medicaid?

A: Medicare and Medicaid are government-sponsored programs that help pay for medical care. Medicare is a federal program for the disabled and people aged 65 or over. Medicaid is a federal-state program for low-income families with children as well as the needy, aged, blind and disabled.

Q: Am I eligible to receive Medicare or Medicaid benefits?

A: Eligibility for Medicare is based mainly on eligibility for Social Security. If you are age 65 or older, have been disabled for at least two years or have chronic kidney disease, you may be eligible to receive Medicare benefits. The eligibility requirements for Medicaid, and which health services are covered, are determined on a state-by-state basis.

Q: Is it illegal to transfer assets for the purpose of obtaining Medicaid benefits?

A: No. For many years, it was a crime to intentionally transfer assets — or spend down — to meet Medicaid eligibility requirements. Later, Congress passed a law targeting elder law attorneys advising clients, rather than the clients themselves. In 1998, Attorney General Janet Reno declared that the Justice Department would not enforce the law as it violated the attorneys' right to free speech. Some federal courts have supported that position. Thus, there is currently no risk of criminal prosecution under the law.

Q: What is long-term care insurance?

A: Long-term care insurance is a private insurance policy purchased to cover long-term care needs, such as home care provided by a paid caretaker, assisted living facilities or nursing homes. While often times quite expensive, long-term care insurance can save a substantial amount of money when compared to the rising costs of long-term care. To determine if long-term care insurance will benefit you, you should speak to an experienced elder law attorney.

Q: Do I surrender any rights when I execute a power of attorney?

A: No. A power of attorney allows an appointed agent the power to exercise the rights that you provide for in the power of attorney document. For example, if you permit it, the agent can withdraw money from your bank account or write checks from your bank account. Because nothing in a power of attorney deprives you of these rights, you have not surrendered any rights. You have, however, surrendered the right to exercise exclusive control over your financial matters.

Q: Why should I execute a living will or health care directive?

A: Living wills and health care directives are important planning tools that allow you to determine what medical treatment you wish to receive if you become incapacitated. You can appoint the person you wish to decide what medical treatment you will receive if you are unable to do so. They also guide your family and physicians when unanticipated medical decisions arise. A living will or advance directive relieves your family members of the difficult decisions related to life-sustaining measures and serious medical procedures.

Q: Can I change my power of attorney or advance directive after I sign it?

A: Yes. Powers of attorney or health care directives can be changed at any time. You may change your designated attorney-in-fact or agent and add or subtract powers that they have or revoke the document entirely. If you wish to change the power of attorney or advance directive, you must notify your attorney-in-fact or agent of the changes. You also should alert other people such as your physician, your banker or other financial advisor to avoid confusion.

Q: How can I adjust to my role as caretaker for my parents?

A: Caring for elderly parents or other loved ones can be demanding when balanced with work and your own family life. Maintaining your personal health, including daily exercise and a steady diet, will help to preserve your physical and emotional strength. Additionally, many organizations exist to provide support to families called upon to care for elder loved ones.

Q: What is the difference between a guardianship and a conservatorship?

A: Depending on the state, guardians and conservators may have different roles. In states with both guardians and conservators, guardians' duties typically involve making decisions to protect the physical and mental health of a ward; conservators typically make financial decisions for the ward. Some states use these terms interchangeably. Regardless of the term used, if the judge determines the ward is incapacitated, the judge also must determine the duties of the guardian or conservator including making physical, medical or financial decisions for the ward, and other matters.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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