550 Forest Avenue Suite 205
Timothy M. Vogel, Esq.
Matthew R. Dubois, Esq.
Elder Law Q&A
Elder Law Q&A
WHAT IS ELDER LAW?
Elder Law focuses on the ever-changing special needs of older persons and their families, as well as planning in advance for aging. Unlike virtually every other field of law, Elder Law focuses, not on a particular subject matter, procedure or legal forum, but on a particular type of client -- the older or aging person. As a result Elder Law covers a broad range of legal issues: finances, retirement, estate planning, access to health care, agency decision making through Advance Directives, public benefits, financing nursing home and long term care expenses through private or public methods, guardianship and conservatorship, age discrimination, long term care insurance, housing, personal injury, end of life decisions, undue influence and exploitation, and health care law, Medicaid / Medicare, probate and tax law.
WHO NEEDS AN ELDER LAW ATTORNEY?
For years many lawyers have had a significant number of older clients. Many lawyers have grown older with their clients from the early Wills, home purchases, business transactions, domestic problems, to estate planning and finally probate of decedent's estates. Elder Law is a response to the changing demographics of contemporary America. We are experiencing significantly higher life expectancies. The largest rate of growth of any segment of the population is for 85 and older. The Baby Boomers are passing 50 at a time when their parents, and in some cases, grandparents are still alive.
Most older persons have increased expectations as to their lifestyles. Many persons now expect to, and do in fact, live to enjoy their "golden years" with vigor and continuing influence in political and cultural areas. Everyone approaching retirement and planning for growing old needs to consult an elder law attorney.
WHAT IS THE ROLE OF AN ELDER LAW ATTORNEY?
As with other areas of the law, the focus of elder law is providing answers for the client, but for the Elder Law attorney, the condition of the client impacts the shape and timing of the answers. Some clients may be suffering from a physical disability that is just beginning to be noticed, while other clients may be under the stress of significantly deteriorating physical and mental disabilities. Other clients are interested in advance legal and financial planning with the prospects of potential disabilities in mind.
Simply put, the role of the elder law attorney is to provide preventative planning, anticipatory documents and focused investing so that growing old is pleasurable and secure.
WHO NEEDS TO CONSIDER RETIREMENT AND ESTATE PLANNING?
Traditionally estate planning attorneys were used by those whose over all worth was significant and therefore they were concerned about payment of gift and estate tax. However, an Elder Law attorney can assist the middle income elder, and those of moderate means in preserving their estate, planning for their retirement, and protecting their hard-earned savings from the extensive costs of long-term care. Thus, everyone should be concerned with doing some basic retirement and estate planning and the Elder Law attorney is best equipped to advise you regarding the potential costs and pitfalls of growing older.
HOW DOES ONE PLAN FOR RETIREMENT?
For those of moderate means, 'when they will retire' and 'if they can afford to retire' are concerns that weigh heavy in advanced planning. An Elder Law attorney is familiar with financial concerns surrounding employer retirement plans, IRAs, and appropriate investments. The Elder Law attorney is familiar with long-term care insurance and the best way to plan for incapacity and the potential costs of long-term care. These skills mean that the Elder Law attorney is well equipped to assist you in planning for your retirement. The Elder Law attorney's network of professionals, including accountants, investment advisors, real estate brokers, and geriatric care managers allow them to assist you in developing a comprehensive financial plan before or during retirement.
HOW DOES ONE PLAN FOR ONE'S ESTATE?
Everyone with any savings or a home, as well as substantial assets such as vacation property or an investment portfolio, should consider planning for the passing of their estate upon their death. This can be as simple as having a properly drafted and executed Last Will & Testament to having a more complex estate plan with family trusts or a revocable living trust. The Elder Law attorney is familiar with probate law, tax law and more importantly in understanding complex family relationships for accomplishing your estate planning goals. Everyone should be able to pass on some of their hard-earned savings or assets to their children and in Maine attorney Vogel and attorney Dubois are ready and able to assist in developing your estate plan.
WHY IS IT IMPORTANT TO PLAN FOR INCAPACITY?
We all everyday participate in dangerous activities such as driving in automobiles and flying on airplanes. In addition, as people are living longer they are living productive and satisfactory lives with a variety of ailments, physical and mental disabilities. In the event you become incapacitated and become unable to carry on your business affairs as you have in the past or in the event of mental incapacity are unable to communicate with healthcare providers regarding your wishes, it is important that you have done advanced planning which provides that your affairs will be taken care of and your wishes will be adhered to. An Elder Law attorney is familiar with not only the various possibilities but also the best solutions for the majority of possible incapacities you may encounter as you age.
WHAT ARE THE TOOLS THAT EVERYONE SHOULD CONSIDER WHEN PLANNING FOR INCAPACITY?
An Elder Law attorney can assist you in setting up a plan for any potential incapacity. Included in the plan may be Durable Financial Power of Attorney, Power of Attorney for Health Care including end of life decision-making (formally known as a Living Will), joint ownership of assets, various trust instruments, and communications with professionals that can assist you. Federal Social Security, Medicare, Medicaid, state MaineCare, trusts, and estate tax laws and regulations all have specific requirements when an Agent is appointed to act on your behalf. An Elder Law attorney is most familiar with all of these varied areas of law and what incapacity plans are best for you in your particular circumstance.
I WON'T REQUIRE CARE; WHY SHOULD I PLAN FOR IT?
The prospect of needing long-term care services is often a displeasing one. Traditionally Americans have preferred to live out their aging years in their homes. Thus, the attitude of many is that they do not wish to be provided long-term care services and certainly do not want to be placed in a nursing home. This is a valid concern and the attorneys here at Vogel & Dubois can work with you on a financial and long-term care plan that can anticipate providing a certain level of care in the home to avoid the need for facility care. However, the substantial cost of nursing and custodial care provided at home for an incapacitated person means that this would only be possible if you proactively work with our Elder Law Attorneys, familiar with Maine law and government financing for long-term care services provided in the home.
In addition, everyone should consider that despite his or her best efforts, at some point care in a nursing home or residence in an assisted living facility may be necessary. Often stays in these types of facilities are for rehabilitative purposes following a hospital stay and the person can return home following their stay. Depending on the length of their stay or the hospitalization, this care may or may not be covered by Medicare. As a result it is important for all elders to have plans regarding how they will private pay for care or how they will qualify for Medicaid (in Maine know as MaineCare) to help pay for their care. Elders today are living longer and with a variety of incapacities. Often residence in an assisted living facility or retirement community can provide continued independence and a higher quality of living than could be obtained in a private residence. The attorneys here at Vogel & Dubois are familiar with the various types of care and many of the long-term care facilities in Maine. Please do not hesitate to contact us for our assistance in developing long term care plans, for a referral to an appropriate long-term care placement, or to an elder care manager who can assist you in the search for an appropriate long-term care placement.
HOW SIGNIFICANT IS THE COST OF LONG-TERM CARE?
The cost of long-term care continues to rise at an unprecedented rate. The cost of custodial care in assisted living facilities continues to increase as the availability of assisted living in Maine and elsewhere is limited. The cost of nursing care services continues to rise in step with increases in healthcare costs nationally. The average cost of a nursing home bed in Southern Maine is currently averaging around $6,500 per month. This level of expense can quickly drain your hard earned savings. It can be anticipated that these costs will only increase drastically in the coming years.
It is important for everyone approaching retirement and our elder population in Maine to make plans to help finance any long-term care services they may require. This can be accomplished in a variety of ways and the increasing availability of long-term care insurance can assist in this process. Middle and low-income families who will not have taxable estates must understand the importance of engaging in financial and estate planning which anticipates the need for long-term care. Long-term care costs can quickly deplete families' assets leaving no inheritance, and considering the current government-funding crisis, leaves the availability of good care a questionable matter once private funds run out.
WON'T MEDICAID PAY FOR MY LONG-TERM CARE?
Medicaid (administered and known in Maine as MaineCare) is the federal/state program put in place to assist in payment of the long-term care expenses of the impoverished elderly. Many people confuse Medicaid with the Medicare program. Medicare is a limited health insurance entitlement for every American elder, Medicaid is not. In order to receive MaineCare long-term care assistance you must first be impoverished. MaineCare is a matching program through the Federal Medicaid program. As a result, as state budgets and federal budgets are strained, payment for long-term care services will only be further restricted. The attorneys at Vogel & Dubois can assist you to develop a plan, not only to shelter assets but also to remain as independent as possible from the need for public assistance with long-term care expenses. The availability of MaineCare and Medicare funding in future years remains circumspect.
WHAT ARE DURABLE POWERS OF ATTORNEY?
Powers of attorney were originally grants of authority to an Agent for a limited purpose at a specific time, such as a transfer of real estate. As people in our society have begun to live productive and satisfying lives with many types of disabilities, the need developed for a more enduring form of agency that did not require going to court for appointment of a Guardian or Conservator. A Durable Power of Attorney is a power of attorney that survives your incapacity allowing an Agent to conduct business or make decisions on your behalf while you are incapacitated.
Under Maine statutes, there are two kinds of durable power of attorney, one for finances, and one for health care. The Health Care Decisions Act that authorizes Durable Power of Attorney for Health Care was enacted specifically to replace Maine's Living Will statute and includes direction for the Agent regarding end-of-life decision making.
An Agent under a Durable Power of Attorney has significant authority to make decisions on your behalf and should be a person you trust. Under current practice, Agents are usually appointed effective immediately so that there is no question that the person has the authority to act on your behalf. However, sometimes Agents are appointed depending upon your incapacity; this gives some authority to your primary care physician to make a determination regarding your incapacity.
The attorneys at Vogel & Dubois are familiar with both Maine statutory and case law dealing with Durable Powers of Attorney. There are many computer programs and preprinted forms on the market that profess to provide an adequate Durable Power of Attorney for use in Maine. These forms and programs are circumspect and often do not contain specific language necessary for an Agent to engage in long-term care planning and may not have sufficient signature and notice language requirements to comply with Maine law.
WHY WOULD I NEED A POWER OF ATTORNEY FOR HEALTH CARE?
The potential to survive accident or incapacity considering todays advanced medicine is real and substantial. Everyone, no matter what age, should have exercised his or her right to appoint an Agent under the Maine Health Care Decisions Act. This Act authorizes the creation of Durable Power of Attorneys for Health Care. In a Power of Attorney for Health Care, you appoint an Agent to make decisions regarding your person, particularly medical treatment decisions in the event of your incapacity.
This law replaced Maine's Living Will law and the Power of Attorney for Health Care will include end-of-life decision-making instructions from the principal (you) to the Agent. Though a Power of Attorney for Health Care is extremely important for all persons, some form of authority or access to finances should also be put in place along with a Power of Attorney for Health Care, as health care decision-making is intricately tied into the ability of a person to pay for the health care services they may need.
WHY WOULD I NEED A DURABLE FINANCIAL POWER OF ATTORNEY?
A Durable Financial Power of Attorney appoints a financial Agent whom you trust to make financial and investment decisions and pay your financial obligations in the event of your incapacity. It is important to appoint such a person before the time of your incapacity so that it is clear who you trust to handle your financial affairs. Though the appointment may be effective immediately, as long as you retain capacity to communicate your decisions they take priority over the decisions of an Agent. Under the Maine statute providing for Durable Financial Powers of Attorney, an Agent is held to the standards of a trustee; liable for all of their actions and their expenditures of your funds.
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