Unfortunately, all too often, seniors begin to deteriorate either physically or mentally and they and their families are unsure how to proceed. The first step is to retain the services of an elder care attorney to evaluate the financial situation of a senior and to develop a comprehensive plan to (i) preserve assets in the event long-term care is needed, (ii) reduce or eliminate estate taxes, and (iii) avoid probate.
Often, the attorney will draft advance directives for his client, typically consisting of sophisticated planning powers of attorney, a health care proxy, and a living will.
The durable power of attorney encompasses legal/financial powers and appoints an agent to act on behalf of an individual, i.e., the principal (the person signing the document), in the event of incapacity.
The health care proxy appoints an agent to make health care decisions if the individual can no longer do so, and a living will simply enumerates one’s specific health care wishes. Anyone engaging in proper planning should also execute a last will and testament, which sets forth one’s wishes for the distribution of assets upon death.
In the event that a client is unable to execute advance directives due to a mental incapacity, it is necessary to initiate a proceeding to appoint a guardian who may do the planning on that person’s behalf. A personal needs guardian usually has the authority to decide on where the individual will reside. A property management guardian has authority to handle financial matters. As part of the guardianship proceeding, it is typical to request Medicaid planning to protect some or all of the individual’s assets.
Once the necessary basic documents are in place, it is usually time to begin thinking about the ideal living arrangements for an ailing senior. Placement will depend on many factors, including the medical diagnosis, physical limitations/abilities, psychiatric diagnosis/limitations, etc. An individual who has been diagnosed with Alzheimer’s, but who is physically well, will likely require a different placement than one who is completely lucid but has severe physical limitations.
An appropriate placement option may be to remain at home with home care, paid for either privately or through Medicaid. An attorney can explain the pros and cons of both private payment and Medicaid.
Another option is independent senior living, apartments where meals and activities are typically provided in communal spaces. The cost varies depending upon what type of apartment and amenities the senior desires.
For individuals who require some assistance, an assisted living facility is often more appropriate. Most assisted living facilities accept only private payment. However, there are some assisted living facilities paid for by the Medicaid program (so-called “ALPs”).
Finally, nursing home care may be the placement of choice for many seniors requiring a higher level of care.
The elder law attorney should be retained to develop and implement a plan to protect the senior’s assets, while ensuring that he is receiving the appropriate housing option.
Prior to making any decisions, the elder law attorney and, in some cases, a geriatric care manager, should be employed to assist the individual and his family regarding placement, and to implement techniques to protect assets, reduce estate taxes and avoid probate.
Ronald A. Fatoullah, Esq., CELA (certified as an elder law attorney by the National Elder Law Foundation), is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn and Cedarhurst, NY. Mr. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also serves on the Executive Committee of the Elder Law Section of the New York State Bar Association. Mr. Fatoullah chairs the Legal Committee of the Alzheimer’s Association, LI Chapter and serves on its Board of Directors. He is also a co-founder of the Senior Umbrella Network of Queens, and currently serves on its Board of Directors. This article was written with the assistance of Stacey Meshnick, Esq., a senior staff attorney at the firm. Mrs. Meshnick supervises the Medicaid department at the firm. The firm can be reached by calling 718-261-1700, 516-466-4422 or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
