Elder Law

DO I NEED AN ELDER LAW ATTORNEY?

If the answer is "yes" to any of the following questions, you probably need to speak to an attorney who practices in the area of Elder Law.

  • Do you have a loved one who is in assisted living or a skilled nursing facility or may need to enter one in the future?
  • Do you have a parent or spouse who has dementia or is at risk for developing dementia?
  • Are you thinking of entering a planned retirement community which is going to contract to take care of you for the rest of your life?
  • Are you managing all of the expenses for a parent or other person close to you?
  • Are you, or a loved one, thinking of transferring a house or other assets to a family member so that the Commonwealth of Pennsylvania won’t take it if you, or your loved one, go into a nursing home on Medicaid?
  • Are you thinking of leaving money to a spouse, child, grandchild or other person who is currently receiving Supplemental Security Income (SSI) or Medical Assistance (Medicaid) or is likely to be receiving such benefits when you die, or shortly after you die?

WHAT IS ELDER LAW?

Elder law is an area of practice for lawyers who handle the kinds of issues commonly faced by the elderly and disabled. The legal problems of older persons can include almost every area of the law but certain issues impact seniors more regularly than others. Most lawyers who consider themselves elder law attorneys are familiar with guardianship, Medicaid and long-term care planning, estate planning and estate administration (probate), medical care issues, including advance directives and the "right to die", Medicare benefits, and a number of other, similar topics. Topics that are often not as widely understood by lawyers other than elder law attorneys might include Medicaid and long-term care planning, special needs trusts, estate planning for disabled family members and advance directives. [return to top]

WHAT IS ESTATE PLANNING?

Estate Planning is the process whereby a person creates legal documents that outline the disposition of personal and real property upon death. The most common legal tools used are the Last Will and Testament and a Living Will. The specific documents that are necessary depend upon your specific situation.

Estate planning is particularly important for people who are married with minor children, older adults who have a disabled spouse or disabled adult child, or nontraditional families or couples.

A person doing estate planning should also give consideration to a Durable Financial Power of Attorney, in case they become incapacitated, and a Medical Power of Attorney, sometimes referred to as an Advance Directive or Living Will.

In addition, a person who has had any history of mental health problems should consider doing a Mental Health Power of Attorney. [return to top]

WHY SHOULD I USE A LAWYER WHO PRACTICES IN THE AREA OF ELDER LAW TO DO MY ESTATE PLANNING?

The primary concern of most people doing estate planning used to be the avoidance of federal and state taxes due at death. That can still be a concern, but changes in the taxes laws have made it less of a concern for most people, as the amount of funds in the estate that will be taxed, for federal estate taxes, has increased. (Not that many years ago, when a person with an estate of only $650,000 died, his or her estate had to file a Federal Estate Tax return. That is no longer the case.) The concern that the majority of persons have, these days, is what will happen to their estate before they die, or on their death, if they, or their spouse, enter a nursing home, and receive Medical Assistance (MA or Medicaid). There are a number of ways of approaching these problems, depending on the facts, and an attorney practicing in the area of Elder Law is equipped to provide advice in this area

Another concern is who will handle an elderly person’s finances, if they become disabled and, for either physical or mental health reasons, can no longer take care of these matters. This is the function of a Durable Financial Power of Attorney. It is also a good idea to have a Medical Power of Attorney so that there is someone to make health care decisions, in the event that a person becomes incapacitated, and unable to make such decisions for them self. Persons who do not have valid powers of attorney can end up the subject of guardianship proceedings. [return to top]

MY FATHER IS ENTERING A NURSING HOME AND WILL HAVE TO APPLY FOR MEDICAL ASSISTANCE. HE HAS $70,000 IN THE BANK AND WANTS TO GIVE HALF OF IT TO MY BROTHER AND THE OTHER HALF TO ME. WHY SHOULDN’T HE DO THAT?

Federal law requires Pennsylvania to look at the finances of someone applying for Medicare or Medical Assistance (MA). If that person has made any gifts, in the last five years before they apply for MA they will be disqualified for a period of time equal to the amount of the gift divided by the average cost of nursing home care per month. If your father gives away $70,000 he will be ineligible, in Pennsylvania, for Medicare for about 7 months, as the average cost is about $7000 per month. In addition, Pennsylvania law says that the Department of Public Welfare, or the nursing home, can bring a support action against the adult child of an indigent parent. So the nursing home may end up suing you or your brother for the money. [return to top]

WHAT IS A SPECIAL NEEDS TRUST?

A special needs trust is a trust designed to provide benefits to a person who is receiving a ‘Needs qualified’ government benefit, such as Medical Assistance or Social Security Supplemental Security Income without disqualifying the recipient from receiving those benefits. [return to top]

WHAT IS A GUARDIANSHIP AND HOW DO I APPLY TO BE THE GUARIAN OF A LOVED ONE?

If a person becomes incapacitated, as a result of mental or physical problems, an interested party can petition the Orphans’ Court Division of the Court of Common Pleas for the County in which that person resides to declare that person incapacitated and to appoint a guardian for their estate or for their person, or both. The Court - not the person who files the petition (the "petitioner") - nor the person who is the subject of the proceeding (the "respondent") - makes the determination as to who will be appointed, if the court decides to appoint a guardian. In that sense almost every guardianship proceeding can be seen as a failure to do proper advance planning.

Sometimes, however, it is necessary to bring this type of petition. If you are thinking that it might be necessary you should talk to an Elder Law lawyer as soon as possible. To give you some idea what you will need if you intend to apply for a guardianship you may want to download a checklist I have prepared. You will need Adobe Acrobat Reader to review this outline.

Guardianship Checklist

If you are thinking about a guardianship you should look into it as soon as possible. If an emergency guardianship is necessary it will probably cost twice as much as a regular guardianship. So do not delay, if you think it may be necessary. [return to top]

WHAT IS ESTATE ADMINISTRATION?

Estate Administration, or probate, is the process of going through the system to distribute property on death. An attorney is not always necessary for all estate administrations, but a consultation will help to determine if one is necessary, and explain how to go through the process. Estate administration is wrapping up all of a person’s life time of financial dealings. It involves paying all bills that are rightfully due by the decedent, paying the costs of a funeral and taxes in consequence of death, and can be quite complicated. For a more detailed outline of what is involved, you can download an outline that I provide to clients which discusses most of the steps in estate administration in the Commonwealth of Pennsylvania. You will need Adobe Acrobat Reader to review this outline. [return to top]

Outline of How a Decedent’s Estate is Administered

WHAT ARE YOUR FEES IN ELDER LAW MATTERS?

I usually talk with the perspective client over the phone for a few minutes, when they make an appointment, on an Elder Law issue, in order to determine what they want and what they may need. My fees are usually $250.00 per hour. I will typically not charge for the first half hour’s consultation. Any fee on a new matter will be stated in a written fee agreement or fee letter. I will also try to provide you with an estimate of the amount of time that I expect a matter to take, although the actual time will depend on the complexity of the issues.

Why should I spend good money on this stuff?

Please consider the following situations. (Please note: The figures used in these answers are for purposes of illustration and not estimates of fees in any particular case you may have. They are, at best, educated guesses.)

Answer #1

Estimated cost of estate planning with a new will, durable power of attorney, medical power of attorney: $500.00 - $700.00.

Estimated cost of a guardianship proceeding in Orphans’ Court, if you do not have a durable power of attorney and medical power of attorney:

Filing fees, including guardian’s certificates:$125.00
Attorney’s fees:$800.00*
Physician’s charge for deposition on written questions$350.00*
Process server$50.00
Guardian’s bond charge:$400.00

Note: * Much, much more if contested, based on time.

Other costs: Loss of dignity, public exposure of your personal business, loss of the ability to choose your own representative, loss of ability to express your own preferences with respect to medical treatment.

Answer #2

Estimated cost of planning for Medicare: $3000.00 -$5000.00.

Estimated costs of not planning for Medicare: Loss of almost everything you own as you impoverish yourself before you are eligible for Medicare.

Answer #3

Cost of drafting a Special Needs Trust to provide for a gift to loved one who is on SSI or Medicare: $1000.00.

Cost of not drafting a Special Needs Trust and just letting the gift go to that loved one who is on SSI or Medicare: Loss of the loved one’s coverage including loss of their Medical Assistance until the entire gift is spent down or, in the alternative, just the immediate loss of the entire gift as it is recovered by the government. [return to top]

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