What is National Elder Law Month?
May is National Elder Law Month. This designation was established by the National Academy of Elder Law Attorneys (NAELA) as a way to acknowledge the profession that supports the senior community with all of their planning needs. Elder Law Month is recognized by attorneys across the country, many of who offer special activities to educate teh public about this important areas of the law.
What is Elder Law and Special Needs Law?
Elder law and Special Needs Law are specialized areas that involve representing, counseling and assisting seniors, people with disabilityies and their families in connection with a variety of legal issues. The Elder Law and Special Needs Law attorney handles estate planning and counsels clients about planning for incapacity with health care decision-making documents. The Elder and Special Needs Law attorney also assists clients in planning for possible long-term care needs, including at-home care, assisted living or nursing home care. Locating the appropriate type of care, coordinating public and private resources to finance the cost of care and working to ensure the client’s right to quality care are all part of the Elder and Special Needs Law practice.
Who Needs Elder Law and Special Needs Lawyers?
America is rapidly aging! Older American have increased 21% as a proportion of the population of the United States since 2002 (from 35.5 million to 43.1 million). One in 7 residents in the US are older Americans (over 65). In 2020, it is projected that there will be more than 56 million older Americans. That number increases to 79.7 million in 2040. The average costs of a semi-private room in a nursing home is $87,235 annually. For an assisted living facility the average cost is $42,600 annually. (Genworth Insurance Company Cost of Long Term Care Survey).
The average median income for elderly men is $27,612 annually, and for women the average annual median income is $16,040. The average net worth of older Americans is $232,000. Even the costs of home care exceeds the financial resources of most elderly Americans.
The costs of home care averages $21 per hour. That’s $15,120 per month or $181,400 per year. Elder law attorneys help their clients preserve and protect their assets for as long as possible, and help plan for Medicaid or other public benefits when needed to provide the elderly with long term care.
There are four main categories of assistance provided by elder law attorneys.
- Powers of Attorney
- Health Care Documents
- Estate Planning Through Wills and Trusts
- Long Term Care Planning
Powers of Attorney
The durable power of attorney is a legal document that allows you to designate the person(s) you want to handle your financial, contractual, and business affairs for you, primarily when you become incapacitated. Florida’s durable power of attorney statute provides that a power of attorney is effective from the time it is signed. The durable power of attorney is subject to abuse, so it is important to understand the implications of the legal document you are signing. You can prepare a general durable power of attorney or a limited power of attorney. The general power of attorney covers most any situation for dealing with third parties. A limited power of attorney is restricted to certain specified areas of authority that you provide to your agent, or attorney in fact. You have the ability to provide expansive powers for your agent, or narrowly restricted powers for your agent. Your elder law attorney can help you design a durable power of attorney that meets your specific needs.
Health Care Documents
There are four basic documents that fall within the broad scope of “health care documents.”
In Florida, the main document is the designation of health care surrogate. The health care surrogate is the person(s) you designate to make medical treatment decisions when you are unable to communicate with your physician. This document is not limited to end of life decisions, but includes situations where you may be temporarily incapacitated such as after an automobile accident, during surgery for one purpose when a second issue is discovered by the surgeon, a heart attack or a stroke.
You may also want a stand along HIPAA release and authorization. A HIPAA release allows various family members or friends, that you designate, the right to communicate with your physicians, health care providers, or insurance companies about your condition or prognosis, or treatment options. The person designated in the HIPAA release and authorization has no right to make health care decisions, just the right to obtain information.
The living will is the document that allows you to express your own desires with respect to the provision or withdrawal of life support, water or nutrition, and other end of life decisions.
Finally, you may want a designation of pre-need guardian for the purpose of you designating the person(s) you want to serve as your guardian, of your person or your property, in the event that after employing a durable power of attorney and the health care documents, there still remains the necessity for a court supervised guardianship. The probate court is required to honor your designation of pre-need guardian unless there is a specific finding that the person you have designated is not suitable to serve in that capacity.
Estate Planning Through Wills and Trusts
Wills and trusts are the fundamental estate planning documents with regard to the transfer of your wealth at the time of your death. The primary distinction between wills and trusts is that wills must go through probate and trusts, if properly funded, can avoid probate, or a court supervised guardianship in most cases. Both a will or a trust provides your instructions for the distribution of your assets and your nomination of the person(s) who will be charged with the responsibility for supervising the gathering of your assets and the distribution of those assets as you have directed. If you would like more information about wills and trusts, be sure to visit our website section “All About Wills” and “All About Trusts.”
Long Term Care Planning There are limited options available for long term care. You can take care of yourself for as long as that is viable. You can have family members be your caregivers to take care of you when you are no longer able to do so. You can hire home health care aides through Medicare, through hands on professional caregivers, or through home companion caregivers. Your options also include moving from your home to an independent living facility. When you can not longer live independently, you may need an assisted living facility (ALF). ALFs provide different levels of care, and usually require that you be ambulatory. Increasingly, ALFs are adding memory care units for those with serious dementia or Alzheimer’s disease. When you need a level of care that cannot be provided through an ALF, the only remaining option is a skilled nursing facility.
Who Pays for This Care? There are limited options for underwriting the cost of long term care, whether it be in home, in an ALF or in a skilled nursing facility. These options include:
- Private Pay
- Family Contributions
- Disability Programs
- Veterans Affairs
In 2014, the national average cost for a private caregiver was $21 per hour. The average costs for an assisted living facility was $3,550 per month. The national average cost for a skilled nursing home was $7,543 a month. The average elderly person’s income and assets will last about three (3) years in a skilled nursing facility. Our task, as elder law attorneys, is helping our clients find the right option for their individual and specific needs for long term care.
With proper planning, we can help the elderly obtain the best proper level of care available for their individual circumstances and provide a road map for paying for the necessary long term care, while preserving family assets for as long as possible.
If we can help you and your family with your long term care planning needs, please let us know.