Elder Law and Senior Legal Matters

What Is Elder Law?

The United States has myriad laws in place to protect seniors as they decline, both mentally and physically. Commonly called elder law, it covers a variety of issues, from health care and Social Security to guardianship and fraud. Elder law also deals with wills and estate planning, and what happens to your assets after you're gone. It can be a complicated topic, but it's important to know about as you get older. Here are some of the most important issues to be aware of.

Advance Directives

You never know what might happen to you down the road, so it's best to be prepared. You may be fine now, but if you ever become incapable of handling your own affairs, it helps you and your loved ones to have plans already in place. Setting up advance directives while you're still of sound mind and body is wise.

As a person gets older and begins to lose their faculties, making important decisions regarding their lives becomes challenging. They might turn to a child, spouse, or trusted friend to advise them on these decisions. However, as they will likely decline further, it may be necessary to appoint a person or persons with control over their affairs.

What Is Power of Attorney (POA)?

Power of attorney is a legal document that authorizes someone to act on behalf of another person in various matters, such as financial and legal. That person is called your agent or proxy. A power of attorney might help a senior pay bills, manage property, and make medical and end-of-life decisions.

A durable power of attorney does not expire. It remains effective if the principal becomes incapacitated and is usually used in estate planning. A nondurable power of attorney is limited in scope and ends once the person being covered becomes incapacitated. The nondurable POA therefore has an expiration date. It's good for temporary matters like if you are being hospitalized or are out of the country and can't physically be present to sign a document.

Several different types of power of attorney may be granted:

General Power of Attorney (POA)

A general power of attorney gives a guardian complete control over their charge's affairs. Someone with a POA can handle your legal, financial, health, and business matters. This agent can make all decisions on the charge's behalf, including purchasing life insurance for you, operating your business for you, speaking for you in court, and deciding if you get a feeding tube or not.

General POA usually takes effect when a person no longer has the physical or mental capacity to make decisions for themselves or act on their own behalf. Who can you choose to be your POA? Most people choose a relative, attorney or accountant, someone they trust to make the best decisions for them.

Special POA

A special POA allows a person to give control of one specific aspect of their lives over to someone else, but retain autonomy in other areas or designate authority in other areas. For example, you might want your best friend who is a financial planner to be your financial POA and handle paying your bills and filing your taxes. But you might prefer a family member to make your medical decisions should you be unable to do so.

With a medical or health care POA, a designated person you choose has the authority to make health care-related decisions on your behalf. In this case, because you're close to your sister, let's say, and she knows you so well, you prefer that she make the decisions about your medications, surgeries, and other procedures, as well as what medical actions should be taken during your final days.

For a senior whose physical and mental health are declining, it's advisable to think about long-term arrangements now. By setting up your power of attorney voluntarily, it's much easier for all involved. Otherwise, your loved ones might have to go to court to declare you legally incapable.

Living Will

A living will is similar to a health care power of attorney. It deals with a person's medical issues after they're no longer physically or mentally able to make important decisions for themselves. However, a health care POA grants someone the authority to act as an agent on someone else's behalf and make those decisions for them. On the other hand, in a living will, the senior writes down their medical wishes themselves, while they still have their faculties, in anticipation of the day when they no longer do.

There are forms you can fill out which ask you questions about what, specifically, you want done in various medical situations, such as if you need long-term care or lifesaving surgery, or are in your final days. Different states have different requirements for filing a living will. You can talk to an attorney to help you through the process or find out about filing through your particular state.

Do Not Resuscitate (DNR)

A DNR order states that no immediate lifesaving measures are to be taken on your behalf. For instance, if you suddenly stop breathing, or your heart stops, a paramedic should not perform CPR. It also means you do not wish to be kept on life support. Write your DNR wishes in an advance care directive or living will and share this with your health care proxy, team, and doctor. (While a living will can be filed by an attorney or on a state-specific form, a DNR order in most states must be written by a doctor.)

Guardianship or Conservatorship

If an older adult has not given power of attorney to someone else, but they clearly no longer have the capacity to act on their own behalf, then a guardian or conservator will be appointed for them. The court might appoint a trusted family member or friend to make decisions on your behalf, but if no family members or trusted friends are willing or able to take on that responsibility, then a professional guardian may be appointed instead.

Fraud and Abuse

Elder Fraud

Older people are often viewed as being more trusting. So, a charming person on the phone might convince an unsuspecting senior that their grandchild is in trouble. Or to buy a product or service for far more than it's worth. Once the criminals get the senior's credit card or bank account information, they can drain the innocent older adult's savings or commit identity theft.

It's a sad fact. Seniors seem to be disproportionately impacted by scams and fraud. But certain kinds of more sophisticated exploitation are more prominent nowadays.

How Do These Types of Fraud Happen?

Tech-related scams that use pop-ups and emails are unfortunately common. Here's how it works: bad actors claiming to be from Microsoft convince you that you have a computer problem or breach. They then persuade you to give them remote access. They quickly capture your information or install malware.

In romance-related scams, lonely seniors who begin dating again are asked to send money to an attractive person they've gotten to know who is usually overseas and in a difficult situation. This person seems genuinely interested in them, but it's unfortunately a ruse.

In package delivery schemes, you are told to click on fake links to get a package. And in investment scams, you might get an unsolicited approach about a great deal, be forced to make a quick decision or get misled through advice from a greedy, unscrupulous financial adviser.

Charity Fraud

Criminals prey on seniors who try to be helpful. For this reason, common scams against seniors involve fake charities or fundraising efforts. This type of fraud is particularly prevalent after natural disasters. A scammer will call and pretend to be collecting money to help the victims.

Remember to ask questions. Who, exactly, will benefit from this donation? How will the money be used, and what specific efforts is the charity making towards its goals? Scammers use sad stories to work on a senior's sympathies, but usually have little information on how the money will be spent or what actions the charity is taking.

To guard against this type of fraud, only give to charities that you know and trust. If someone calls claiming to be raising funds for a particular organization, check them out online first. Once they've been verified, give directly through the official website, rather to someone over the phone.

Home Repair Scam

Someone might call or come to your door offering to provide a particular service for your home. Maybe they can repaint the house or repave your driveway. Maybe they have a special offer in your neighborhood if you act now. If they originally quote a reasonable price, they might then find problems that threaten your safety and cost thousands of dollars more. Or they might do subpar work, or sell you an extended warranty which they refuse to honor when the job doesn't hold up.

Here are some things you can do to guard against home repair scams:

• Never hire a company that cold calls you, whether by calling you or coming to your door. If you need repairs, go online and do your own research. Check Angie's List and the Better Business Bureau to see if a company is reputable. Look for references and customer testimonials.
• Beware of anyone who offers to do repairs on the spot. Ask them if you can have a business card, and research them online. Often, scammers won't have a business card to give you. This is a huge red flag.
• If a contractor or repair person tells you that there's more work to be done than originally anticipated, or that you need some costly extra service, don't agree to anything until you've gotten a second opinion.
• If someone comes to your door, don't let them into the house, even if they ask. Some scammers will pretend to be offering some vital service, but are really taking the opportunity to case your house to burglarize later — checking for vulnerable entry points, valuables in plain sight, etc.

Tips to Prevent Getting Scammed

To protect yourself against all kinds of fraud and elder financial abuse, here are basic tips:

• Don't give personal or financial information over the phone or through email to strangers.
• Don't pay a fee in order to collect winnings you're supposedly entitled to.
• Don't sign any documents without first consulting with an attorney or a financial expert.
• If the offer seems too good to be true, it might be.
• If someone informs you of a problem (or offer) that's urgent which requires you to give money or financial information right away, be suspicious.
• When you get emails that you're not sure about, check the return address. If it seems legit, go to the company website to double check. Always call the phone number on the website. Or email customer service at an email address that's listed on the website.
• If your computer seems frozen and popups tell you to contact someone, contact your IT support instead.
• Consider purchasing identity theft protection software for added peace of mind. Read our list of the best identity theft protection to learn more.

If You Get Scammed

So what if, despite all your precautions, you do end up getting scammed? What recourse do you have? What can you do? Here are the steps you should take.

• File a Police Report. Not only will this help in investigating and eventually catching the parties responsible, but it will also make it more likely for you to recover the money that they scammed from you.
• Talk to Your Bank and Financial Institutions. If you were the victim of identity theft, or otherwise provided the scammers with confidential financial information, then notify your bank, your credit card companies, etc., so they can issue new cards, recover your money, and protect your accounts from further fraud. If you gave someone your Social Security number, or suspect they may be able to obtain it, then also contact the Social Security Administration.
• Contact the Better Business Bureau. Give them the name of the company that scammed you (or the company they claimed to be from), as well as details of the incident, so that they know what the situation is and can help others to avoid it in the future.
• Tell Your Family. You may be reluctant to do this. If you fell for a scam, will your loved ones decide you're unfit to manage your own affairs anymore? Recognizing that you were a victim of fraud and taking steps to do something about it indicates that you're still in possession of your faculties.

Why Don't Seniors Report Fraud?

Seniors are less likely to report fraud than others. Often, they don't realize that they've been scammed. And if they do, they might be ashamed to tell anyone. Falling for a scam could be evidence that they're no longer able to care for themselves and need an appointed guardian, making many seniors reluctant to admit they've been duped. Or even if they want to report it, they may not know how or where to do so.

Trusts and Estates

One of the most important legal issues that seniors contend with is: what happens to your stuff after you're gone? Even if you don't have very much, it's important to lay out a specific plan for your assets. Otherwise, the people who survive you could end up embroiled in legal battles or administrative red tape for years afterwards.

Estate Planning Law

Estate planning involves more than just a will. It covers issues we've already mentioned like DNRs, power of attorney, and living wills, as well as tax issues related to your property, and more. If you have a will and pass away, your estate typically goes through probate, a legal process for distributing your assets. However, parts of an estate plan, like living trusts and accounts with designated beneficiaries, can bypass probate which allows assets to be transferred directly to heirs without court involvement.

Most estate law varies from state to state, so to find out what you need to do and make sure these issues are all dealt with properly, talk to a local lawyer with experience in estate planning. They can help you through all of the important decisions, make sure everything is legally binding, and save your heirs as much hassle as possible after you're gone.

It's also important to appoint an executor for your will. This is the person who will oversee the distribution of your assets and make sure that your final wishes are honored. Other duties of an executor include:

• Filing a copy of the will with probate court
• Managing any incoming funds and paying any remaining bills
• Paying any taxes or outstanding debts
• Notifying banks, credit card companies, government agencies, and any other institutions of the death

For issues requiring payment, the money comes out of the estate, not the executor's pocket. In fact, often, an executor will be paid for their services. If the money can't be found to pay off the deceased's final debts, then a portion of their property may need to be sold or auctioned, even if it was previously promised to someone else.

Trusts

In some situations, it may be best to put your assets into a trust. That means that a trusted third party can be given care of your assets until your loved ones can claim it. This can help your heirs avoid probate after you die, which is often a long and drawn-out process that delays them getting what you've promised them. There are several different types of trusts:

Revocable Living Trust

A revocable living trust is similar to a will. You put your assets into a trust, and name various beneficiaries for certain things/amounts. But in a revocable living trust, you can make changes to it, remain in control of it, and avoid probate. You are usually the trustee, able to manage the assets in whatever way you see fit—i.e. even to live on these assets. As trustee, you can alter the beneficiaries and what they're entitled to. You have to name a successor trustee, who acts as an executor when you die, and distributes your assets according to your wishes.

The two differences between a revocable living trust and a regular will? A revocable living trust allows assets to bypass probate and remains private, while a will goes through probate, which is public. Additionally, a revocable living trust can provide management of your assets if you become incapacitated, whereas a will only takes effect after death​.

Irrevocable Living Trust

An irrevocable living trust cannot be altered or revoked once established. It requires you to permanently give up control over the assets. The appeal lies in providing tax benefits and protection from creditors. For example, you can give your heirs their inheritance now, instead of after you die and reduce the estate value and taxes on it. You can choose to keep a portion of your assets out of the trust, for you to live on for the rest of your life. Or the appointed trustee can provide for you out of the trust. Unlike a revocable trust, an irrevocable one technically can't be undone, but there are ways to amend it.

Testamentary Trust

These trusts involve probate, but no upfront work of maintaining like a revocable living trust. People choose testamentary trusts when they have specific conditions about asset distribution. For example, you can put part of the inheritance for your minor kids who aren't fiscally responsible in a testamentary trust. You name the heirs in question as beneficiaries, but stipulate that they cannot receive the assets until a specified time, such as their eighteenth birthday.

Special Needs Trust

This kind of trust manages assets for someone with disabilities while protecting their eligibility for government programs like SSI or Medicaid. So, if one of your heirs is disabled, a special needs trust allows you to leave them part of or all of your estate without preventing access to crucial programs and their benefits.

Elder law can be a complicated matter — particularly if you yourself are in decline. However, it's essential for you to know what your rights and responsibilities are: what you're entitled to and how you're protected. To understand elder law better, and how it affects you, talk to a lawyer, who can guide you through the ins and outs and help you make all necessary arrangements, both now and after you're gone.

Here are answers to the most common queries that lawyers encounter about elder laws. As we grow older, it's natural that concerns arise regarding where to live if you become frail, who will care for you, how to pay for care, how to turn over your assets, and so much more.

Stuart Furman, an attorney and author of the ElderCare Ready Book, answered five typical elder law questions his firm gets a lot from older adults who want answers:

Q: Can I prevent my properties, assets, and estate from being taken away by Medi-Cal (Medicaid in California) when I die?
A: Most people believe that if they get Medicaid, assets that they didn't include in their application are also exempted from being recovered by the Medicaid recovery statutes. This is false.

“One of the common misconceptions people have is they… confuse eligibility exemptions with recovery exemptions,” said Furman. If a person's house is exempted and not included in determining eligibility, it does not mean it is exempted from recovery. This means though certain assets might not affect eligibility, they could still be targeted for recovery by Medicaid which wants to recoup costs from an individual's estate after their death.

Due to this confusion, people apply for a Medicaid lien for their houses. Furman reassures that there are various legal ways to save your houses from a Medicaid lien and other liens in your state. Consulting with an elder lawyer about it is a must.

Q: Can I afford long-term care for the remaining years of my life?
A: Furman suggests you can, but first think ahead. Assess your possible needs before you require long-term care, lay out your resources, and develop a way to stretch those funds to last your lifetime.

He suggests you consider the following to help you find ways so that you can afford long-term care:

• Your age. How old are you now and how long do you expect to live? If you maintain your healthy lifestyle and do not have existing and chronic medical conditions, you can expect to live longer.
• Your ailments. Depending upon your medical history and current illnesses, consider if you're likely to develop any major diseases in the coming years or not and what the cost might be for that.
• Your cost of living. Compute how much the cost of living is in your area. Consider how much you'll need to spend if you choose to live in a skilled nursing or assisted living facility in the future. Consider the cost if you remain in your home and need custodial care. (You might consider the differences between nursing home care and home care.)
• Your income generation. Even if you retire, figure out if you can still generate revenue by selling your insurance policy, having a reverse mortgage, selling your home, or earning extra income doing some freelance work.
• Your family's support. Consider whether your grown kids or relatives can help you when you're older or help you pay for long-term care. It's best if you can rely on people when you're no longer self-reliant. They may be relatives, friends, or aides.

Q: If I make a trust, can I modify it whenever I need to?
A: Furman says yes. He adds that there are instances in which even irrevocable trusts can be changed. Ask your local lawyers who specialize in elder law for more information.

Q: If I create a living trust, does this mean I'm giving up control over my assets?
A: Furman says you are not giving up control if you have a living trust. Control changes only when you die or you become incapable of handling your own affairs. Only then will a living trust's assets be disseminated to your beneficiaries. If you become incompetent, the trustee successor listed in your living trust will take over your trust.

Q: Living will vs. living trust?
A: Most people confuse “living will” and “living trust.” Furman reminds you that both legal documents are not the same. A living will deals with your medical treatment and end-of-life care and a living trust addresses your asset management and distribution. Furman notes that every state has different regulations and rules so he recommends you consult local attorneys about your particular situation.