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When facing long term health care costs, we assist our clients and their families with navigating some of the issues involved.
Common Elder Law Issues
- Understanding the difference between Medicare and Medicaid and how those differences affect each client.
- The potential issues involved in the transfer of assets as part of long-term health care planning, including a discussion of joint assets and exempt assets.
- A discussion of income cap issues and the preparation of an Income Cap Trust if necessary.
- Community spouse support.
- Guardianship and conservatorship issues – helping appoint a designated legal representative for a person who has become incapable of representing himself.
There are a number of pitfalls to avoid in assisting clients to prepare for long term care, but every person’s situation is unique. With proper planning, the dire personal and financial consequences of long term care costs can be faced with a sense that they are getting a fair shake and that they know what they can expect. In view of the other uncertainties these situations usually include, any sense of certainty will be much appreciated.
Guardianship and Conservatorship
When is a person (client or family member) no longer capable of making decisions for himself or herself? When is a person no longer capable of managing his or her own financial affairs? This is a difficult question to answer and a difficult decision for a family to make.
First, it is important to distinguish between someone who is disabled and some one who is legally incapacitated or financially incapable.
Disability has no legal definition – nor should it. We all require assistance with some aspect of our lives. Some people require more assistance than others. When representing a client with disabilities, we focus upon what assistance the client requires and how we can facilitate the continuation or improvement of that assistance. The mere fact that the client is disabled does not mean that the client is incapable of managing financial affairs. Put another way, not all disabled persons are incapacitated.
In determining incapacity, the Court places weight in the opinions of doctors, psychologists, public social workers, private case managers, family and friends. In a contested matter, the Court (or the Court visitor) will attempt to contact all relevant parties to get an overall picture of the individual’s capacity. It is important to understand that a medical diagnosis of dementia (ie. Alzheimer’s, organic brain syndrome, etc.) does not, in and of itself, constitute a legal finding of incapacity. Until a Court legally determines that the individual is incapacitated, that person retains all of their rights and their decision-making abilities.
A conservator may be appointed for an individual who is financially incapable while a guardian would be appointed for an individual who is legally incapable. Often both a guardian and conservator are required to be appointed if the individual is both financially incapable and legally incapable.
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