Legal Planning for Alzheimer's or Dementia

Having a parent, grandparent, or close friend that is diagnosed with Alzheimer’s or dementia can seem overwhelming. However, if you begin planning for their future early, many of the difficulties associated with the disease can be avoided. In addition, the sooner planning begins, the more the person affected can participate.

The Importance of Legal Planning

Early legal and financial planning for your loved one helps to keep costs (and stress) at a minimum going forward. It also allows the person with dementia to express their own wishes for future care, as well as be involved in choosing decision makers on their behalf. Legal and financial issues for long-term care can also be addressed. An experienced Elder Law attorney can also help the person with dementia qualify for MediCal, which can save thousands and thousands of dollars in long term care costs. In the Elder Law field, this is known as MediCal planning.

Legal Issues to Address:

  • Planning for Long-term care and health care
  • Planning for finances and property
  • Designating someone to make decisions for the person with dementia

Before speaking with an Elder Law attorney, determine if the person with dementia has the legal capacity to sign documents. If there is any question as to whether or not they can, consult with a medical doctor. A doctor can help determine their capacity, and provide written proof of their mental capacity. Many elder law attorneys will require such a document before having them sign anything.

In addition, locate any living wills, powers of attorney, or trust documents that were signed prior to the diagnosis. If you cannot find a record of these documents, or none were completed, consult with your attorney on the next steps. It is possible that an estate plan can be made, but in some cases a Conservatorship may be necessary first.

What to discuss in your first Appointment:

  • Who will make health care decisions for the person with dementia?
  • Who will manage the property and finances of the person with dementia?
  • Who will manage their personal care?
  • How will long-term care be paid for? Can MediCal, Veteran’s benefits, or long-term care  insurance policies help?

What to Bring to your Elder Law Attorney:

  • Life insurance policies
  • Real Estate deed copies
  • Recent Income Tax copies
  • Estate Planning Documents (trusts, wills, power of attorney)
  • Health Care Facility documents (retirement home, nursing home, if applicable)
  • Health Insurance Policy Information
  • List of itemized assets
  • Names and addresses of family, caregivers, and professionals involved (for example, beneficiaries if there is a will or trust)

3 Tips for Success:

1. Ensure that your loved one’s doctors and caregivers have a    copy of their power of attorney

2. Have your loved one name a successor agent on the      power of attorney

3. Consider hiring a neutral third party to act as power of    attorney, trustee, or executor.

Most Elder Law attorneys will offer a free consultation to answer any questions you might have. It is important to hire an attorney who works in the county your loved one resides in. I frequently work with families on Conservatorship and Trust matters in Contra Costa County and Alameda County. To set up your initial consultation, call 925-322-1763. I'll be happy to speak with you.

 

Elder Law Part 3: Conservatorships, Elder Abuse

In our third installment of Defining Elder Law, we discuss Conservatorships and Elder Abuse. While technically these are two separate legal matters, they often find themselves intertwined, as conservatorships often become necessary because financial elder abuse is occurring. 

CONSERVATORSHIPS

A Conservatorship is when the Court appoints a person (such as a friend, family member, or even professional) to act as an agent for another.  A Conservatorship is the best way to assist an elderly person with severe mental capacity issues, while also providing complete and total protection. To obtain a Conservatorship, you must petition the Court requesting that they appoint you Conservator over the person with mental capacity issues (i.e. the Conservatee).  A Conservator can make legal decisions on behalf of a Conservatee in several different situations. While a conservatorship can be obtained without an attorney, it is a complicated court proceeding with many nooks and crannies. One example is when one petitions the court for a conservatorship, they need significant proof that a conservatorship is indeed necessary. This includes thorough medical reviews, outside witness testimonies, and other supporting information. There are also a host of forms and documents that need to be filed with the court, and if not done in the correct manner they can delay the conservatorship proceeding and have you running back to court time and time again. Finding an attorney who specializes in Conservatorships in your county is often the best route to a successful legal proceeding. I specialize in Conservatorships in Contra Costa County and Alameda County, where I am familiar with the judges and know the way they need things done in order to approve a conservatorship. Read more about conservatorships.

ELDER ABUSE       

As the elderly population in the U.S. has grown, unfortunately so have the number of Elder Abuse cases. Fortunately, however, the awareness about elder abuse has also grown. Elder Abuse normally takes one of two forms - Financial Elder Abuse, and Physical Elder Abuse.

Financial Elder Abuse can occur when an elder or vulnerable adult provides their assets to a caregiver of a family member.  In my practice in Contra Costa County and Alameda County, I have witnessed Financial Elder Abuse cases involving daughters, siblings, caregivers, and even spouses.  Examples of Financial Elder Abuse include caregivers exercising inappropriate influence or taking advantage of lack of mental capacity, making changes to a will inappropriately, misappropriating funds in a trust, theft of personal belongings, stealing or misusing funds, and making changes to bank account, real estate, or car titles.

Physical Elder Abuse is less commonly seen in court proceedings, however its prevalence can be staggering. Starvation, malnutrition,isolation, and gross negligence are all forms of physical elder abuse. In my own personal practice, I have most often witnessed caregivers/family members who are negligent, and I help those concerned to take legal action to change their situation.

Finding a highly experienced litigation attorney who specializes in Elder Abuse issues is essential when facing a potential legal action. If you’re unsure if you need an attorney, consult one anyway - it’s the best thing you can do to protect yourself and your family. I offer a free consultation at my Estate Planning and Elder Law Firm in Walnut Creek, and many other attorneys do as well.

 

 

What is Elder Law? Part 1

 Elder Law Part 1: Estate Planning 

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While the mansion in the photo is indeed elderly (circa 1700), and many would no doubt call it an "estate," Elder Law as it relates to estate planning isn't always about large homes, or even elder persons.

The term “Elder Law Attorney” actually refers to a fairly new field of Law - yes, you guessed it - Elder Law. This speciality encompasses the traditional Estate Planning arena, but also includes healthcare, planning for mental disability or incapacity and the receipt of benefits as related to seniors. Often Elder Law overlaps with other practice areas and legal issues when a person is over 65. So how has this field come to be?

One of the primary reasons is the rapid increase of the elderly population in the United States. In the early 2000’s, 12% of our population was over 65 - but by 2050, it’s estimated that it will be upwards of 20%. These same people are also wealthier and more educated than ever before, thus giving them more political sway. This power, however, has been met with the cutting of government benefits upon which many senior citizens depend, and the rise of healthcare costs. In order to protect their assets, more and more seniors are seeking legal assistance in order to protect their hard earned assets.

In this post series, I will address the primary facets of Elder Law: Estate Planning, Medi-Cal Planning, Conservatorships/Guardianships, Elder Abuse, Estate & Trust Administration, and Probate & Trust Litigation. First, let's consider Estate Planning as it relates to Elder Law.

Estate Planning and Elder Law:

An estate plan with a Trust (in addition to a will) is essential for anyone with assets over $150,000.  However, an estate plan is also necessary to plan for one's medical care should they no longer be able to make medical decisions for themselves. A durable Power of Attorney and Advance Healthcare Directive provide a means by which to secure a trusted 3rd party to make medical decisions in case of incapacity. These documents are typically part of an estate plan, which can be done with an experienced estate planning attorney.

Estate Planning and Elder Law are also closely tied together in the sense that if one does not formally complete their Estate Planning documents and should become incapacitated or pass away, their family will be left to cope with one of the other facets of Elder Law - Probate, Conservatorship/Guardianship, Estate Litigation, and possibly Financial Elder Abuse. A probate is defined as the court distribution of assets upon the passing of someone who may have a will, but does not have a Trust. A conservatorship (also called guardianship in some states) is necessary if an individual becomes mentally unable to care for themselves, their assets, or both. In Contra Costa County, the majority of conservatorships I have dealt with as an attorney are for elderly persons who have Alzheimer's or dementia. Probate or Estate Litigation can occur when there is no will, or a will in which gray area exists.

If estate planning documents are not carefully worded, specifically for you and your family members by an experienced attorney, room is left for argument between family members. Family members, as we all know - can and will argue. Arguments most frequently ensue over money and assets, but can occur when there is a contested conservatorship or other disagreement about medical care as well. Without estate planning documents, elder abuse claims can arise around financial elder abuse or physical elder abuse. Example: a sibling receives money from a parent just prior to passing instead of it going through probate to be distributed to all the children equally. Estate planning documents do not exist, so another sibling accuses the sibling who received money of applying "undue influence" to the parent, who was known to have dementia. Physical elder abuse claims can occur in situations like the Casey Kasem case, in which his daughter decided to "pull the plug" on his life support machine and his wife decided to remove him from the hospital and take him on a wild west coast excursion.

The bottom line is obvious: if you haven't done your estate plan, it's a really good idea to get it out of the way. I suggest going with an Estate Planning Attorney who specializes in Litigation - that way, they're familiar with all of the ways things can go wrong, and can ensure your documents are executed as air tight as possible. And if you have a parent or elderly relative who has not yet done an estate plan - encourage them to do it as well.

Estate Planning is an often overlooked but critical part of a healthy financial future. If you need an estate plan, or need to update your estate plan, contact Matthew B. Talbot, Walnut Creek Elder Law attorney at 925-322-1763.