***THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP AND SHOULD NOT BE RELIED UPON TO THE EXCLUSION OF CONSULTATION WITH A LAWYER IN THE READER¡¦S JURISDICTION THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY***

DO YOU NEED AN "ELDER LAW" ATTORNEY?
by Kathleen A. Negri, Esq.M

A new specialty area of law has evolved over the last ten years, known as "Elder Law." "Elder Law" is a term coined by practitioners whose focus is on the elderly and disabled segments of the population and the myriad of legal issues individuals within that group face, including planning for death and disability, planning for long term care, Medicare and Medicaid planning, abuse and neglect, and problems arising from loss of capacity. One common goal among Elder Law Attorneys is to take an holistic approach to solving the legal needs of the elderly and disabled. Elder Law Attorneys, therefore, often provide additional services in the traditional areas of estate planning, including wills and trusts, and estate administration, including probate and will contests.

The issues faced by the elderly and disabled, and by their families, are often the same legal issues faced by younger consumers of legal services. However, these populations face several unique challenges as they age, particularly issues concerning individual freedom and quality of life. Therefore, the role of the Elder Law Attorney is often one of balancing the client¡¦s individual freedom and quality of life, with the family's or society¡¦s concerns regarding the client¡¦s personal and financial well-being.

This article will discuss the kinds of legal issues addressed by the Elder Law Attorney, some guidelines on how to choose an Elder Law Attorney, as well as local resources available to you in your search for an Elder Law Attorney.

PLANNING FOR DISABILITY

A large portion of the Elder Law Attorney's practice will be devoted to assisting the client in planning for disability and death. This includes the area of "advance directives." An "advance directive" is a written instrument that sets forth what you want done in case of illness or disability. Advance directives include the Living Will, the Medical Durable Power of Attorney, the CPR Directive, and the Durable General Power of Attorney. It is important to execute an advance directive while you are healthy and understand the consequences of your act, so that your future medical and financial affairs can be managed for you without the necessity for court involvement.

A Living Will is a written statement about your wishes for withholding life support and artificial nutrition and hydration. If two doctor's have certified in writing that your death is imminent, and you have been in a coma or otherwise unconscious for seven days, the Living Will directs that life support and/or artificial nutrition/hydration be withdrawn. The benefits of the Living Will are that it is a clear statement of your intent regarding certain medical procedures, it will travel with you from state to state, and it is relatively inexpensive to obtain. However, the Living Will is a very narrow document that only applies if you are in a "terminal condition." This may not include being in a persistive vegetative state or suffering from Alzheimer's or Parkinson's Disease. Also, the Living Will only applies to withdrawal of life support and artificial nourishment and hydration. No other medical decisions that may arise during a period of illness are covered by the Living Will.

The Medical Durable Power of Attorney ("MDPOA") offers a more comprehensive solution to dealing with the multitude of issues that may arise during a period of illness or disability. The MDPOA is a written document that appoints an agent to make medical decisions for you should you be unable to make these decisions. This document is much broader and flexible than the Living Will, providing the agent with authority to make day-to-day decisions regarding your health care needs. For example the MDPOA allows your agent to make decisions regarding such issues as medical treatments, procedures and services, continued life support, nutrition and hydration, access to medical records, employment of health care personnel, placement, and transportation. You do not have to be in a terminal state for the MDPOA to be effective, but you must have communicated to your agent your quality of life and health care wishes so that your agent can effectively carry out your wishes. Communication is key to the success of the MDPOA!

The CPR Directive is a special kind of advance directive that deals solely with the administration of cardiopulmonary resuscitation by emergency medical personnel, for example, in a 911 response. The term, "cardiopulmonary resuscitation" or "CPR," means measures to restore cardiac function or to support breathing in the event of cardiac or respiratory arrest or malfunction. This includes, but is not limited to, chest compression, delivering electric shock to the chest, or placing tubes in the airway to assist breathing. The official CPR Directive is a unique document printed on distinctive security paper and sequentially numbered. These forms are issued by the Colorado Medical Society and distributed to the public through a family physician, a home health agency or a licensed or certified health care facility. An Elder Law Attorney cannot obtain an official CPR Directive for you, but can counsel you on its purpose and effect. In addition to executing the CPR Directive, you are encouraged, but not required, to obtain an identifying necklace or bracelet that states you do not want CPR in an emergency situation. A CPR necklace or bracelet can be obtained from The Award & Sign Connection in Greenwood Village, Colorado, for $25.95 (303-799-8979).

In addition to your medical concerns, you may also want to choose an individual to assist you with your financial affairs should you become ill or disabled and unable to manage your affairs effectively. This can be done with a General Durable Power of Attorney ("GDPOA"). A GDPOA is a written document that gives your agent the power to manage your financial affairs, including collecting and paying obligations, banking transactions, filing tax returns, managing your business or real property, hiring other individuals to assist you (i.e., an accountant, realtor, lawyer, etc.), and assisting with long-term care planning. You can limit your agent's authority or grant the agent broad authority to manage your affairs. Again, it is important to choose an individual whom you trust to be your agent and to clearly communicate your wishes regarding the management of your financial affairs. Because the GDPOA is "durable" it is still effective once you become ill or disabled and are unable to manage your affairs; however the GDPOA ceases to be effective when you die.

If you have not executed an advance financial or medical directive, and you become disabled and can no longer care for yourself and/or your finances, it may be necessary to have a court appoint a Guardian or Conservator for you. This is another area where an Elder Law Attorney can be of assistance. A Guardian is someone appointed by a court to care for you when you are no longer able to care for yourself. The Guardian will assist you with your day-to-day needs for food, clothing, shelter, or medical care. A Conservator is someone appointed by a court to manage your property and financial affairs when you are no longer able to do so yourself. It can be very expensive to obtain a Guardianship or Conservatorship. Therefore, planning ahead with advance directives can save this cost and also preserve your autonomy and personal freedom.

PLANNING FOR LONG-TERM CARE

Another major area of counseling provided by the Elder Law Attorney is planning for long term care. The average cost of nursing home care in Colorado will often exceed your income. If you are diagnosed with Alzheimer's Disease or another type of dementia and a secure placement is required for your personal safety, this cost can increase substantially. The question becomes how to pay for this long term care (1) without impoverishing your spouse living in the community and (2) while still preserving some of your hard-earned assets for future generations.

Planning for your long term needs involves considerations of Medicare and Medigap Insurance, Long Term Care Insurance, Medicaid and other public benefits assistance programs, nursing home placement and resident's rights issues. Long term care is an area of great concern to the elderly and disabled, and because of its complexity, it requires a great degree of expertise on the part of the Elder Law Attorney to be an effective counselor.

Medicare is a federal health insurance program that provides basic hospital and medical insurance to anyone who is at least 65 years of age, or disabled, and who has paid into the Social Security or Railroad Retirement programs. Eligibility for Medicare coverage is unrelated to financial need. Medicare Part A covers hospitalizations, limited skilled nursing home care, home health care, and hospice care. There is a deductible and coinsurance payment for Part A benefits which change each year. Medicare Part B covers major medical expenses such as doctor's visits, outpatient services, ambulance services, and lab charges. There is an annual deductible and monthly premiums for Part B benefits. Part D Medicare provides coverage for prescription drugs. Medicare does not cover long-term nursing home care.

Medicare does provide a limited skilled nursing facility benefit. The intent of the Medicare skilled nursing facility benefit is to address acute situations which can be cured, restored to former condition or improved by short-term daily care or rehabilitation. Further, Medicare covers only "skilled care," not custodial care. Typically, an individual will need custodial care over the long-term, where restoration is not possible, for example, in the case of Alzheimer's Disease, dementia, etc. A doctor's certification is required for the Medicare skilled nursing facility benefit, as is a prior hospitalization of at least three days, not including the date of discharge. The benefit is limited to a maximum of 100 days per benefit period. The first 20 days are covered in full; days 21 to 100 have a coinsurance payment which changes annually. Often, trying to obtain the Medicare skilled nursing facility or home health care benefits can require the advocacy of an Elder Law Attorney.

Medicare only covers between 40 to 50 percent of a person's health care costs. Luckily, Medigap Insurance is available to fill in the "gaps" of Medicare coverage. "Medigap" refers to supplemental health insurance that you can purchase to cover the Medicare deductibles and coinsurance, prescription drugs, and additional skilled nursing care coverage. Medigap Insurance policies are regulated at both the federal and state levels. There are ten (10) standard Medigap insurance policies. The cost of these policies varies on the number and type of "gaps" filled by the policy. There are also HMO programs that provide additional coverage for a monthly premium. For more information on Medigap and HMO Insurance plans, contact Centura Health Insurance Counseling for Seniors, 303-899-5151, 1-800-544-9181.

Long term care insurance is a relatively new answer to the ever increasing cost of long-term care. Unlike Medigap policies which have been standardized through regulation, long-term care insurance policies generally remain unregulated. New products are continually being introduced because of increasing competition in this market. Therefore, buyer beware! Colorado enacted the Long Term Care Insurance Act of 1990, which became effective on July 1, 1990. All long term care policies delivered on or after July 1, 1990 must comply with the requirements of the Act. For example, such policies:

« cannot be canceled, non-renewed or otherwise terminated on the grounds of age or deterioration of mental or physical health of the insured; « cannot have a new waiting period if existing coverage is converted to or replaced by a new policy within the same company; « cannot cover only skilled care or provide significantly more coverage for skilled care than for lower levels of care; « cannot exclude Alzheimer's Disease or other types of dementia contracted after the policy is in force; « cannot exclude "pre-existing" conditions longer than six months from the effective date of coverage; and « must have a thirty-day free look period from date of delivery with a money back guarantee.

Long term care insurance coverage can range from providing simple assistance with activities of daily living (such as bathing, eating, personal hygiene and household chores), to round-the-clock skilled care or respite care. The type of coverage depends on the type of policy you buy. For more information on long term care insurance products and coverage options, contact Centura Health Insurance Counseling for Seniors or the Colorado Division of Insurance, at 303-894-7499.

For many people, the only source of payment for long-term care services will be the Medicaid system. Medicaid is a government "welfare" program designed to provide medical care and nursing home care to impoverished individuals who are aged, blind, or disabled. To be eligible for Medicaid long term care benefits, you must need the care provided by a nursing home and you must meet strict medical need, income and resource tests. Qualifying for Medicaid long term care benefits is a very technical process. It is recommended that you seek the advice of an Elder Law Attorney with Medicaid planning experience well in advance of a nursing home placement.

NURSING HOME PLACEMENT

Often, nursing home placement occurs during a crisis situation. Therefore, it is important to have assistance with placement issues. Assistance can be found with discharge planners at hospitals, with private case managers, or with an Elder Law Attorney. Some issues to address include:

« Admission to the facility. No one can sign you into a nursing home against your will, unless you are unable, because of illness or disability, to make that decision. It may be necessary to have a guardian appointed for you, or, if available, to use a Power of Attorney to admit you to the facility. « The admissions contract. Careful scrutiny of nursing home admissions contracts is recommended. For example: Does the contract include a clear, itemized list of services included in the basic daily rate? Is there a clear itemization of extra charges? Does the contract require someone other than the resident (or his legal representative) to sign the document? Is someone other than the resident required to assume financial responsibility?

Once admitted to a nursing home, you do not lose all of your rights as an independent individual. Federal and state legislation has established a "bill of rights" for nursing home residents. Some, but not all, of these resident rights include:

« the right to be free of interference, coercion or reprisal from the facility when complaining about conditions in the nursing home; « the right to choose a personal attending physician; « the right to manage your financial affairs; « the right to be free of interference, coercion or reprisal; « the right to privacy and confidentiality of personal and clinical records; and « the right to be free from physical or chemical restraints imposed by the nursing home for purposes of discipline or convenience.

Several mechanisms are in place to protect your rights as a nursing home resident, including a state-wide ombudsman program. The ombudsman is your advocate in the nursing home and will respond to your complaints and concerns. The Colorado Ombudsman can be reached at 303-866-2885. An Elder Law Attorney can also help you if your nursing home rights have been violated.

As stated above, it is common to find an Elder Law Attorney who also provides traditional estate planning and estate administration services. This includes helping you to draft your Last Will & Testament or a trust. This also includes assisting your personal representative to administer your estate after your death or to handle a will contest. Finally, there are a multitude of other areas where the Elder Law Attorney can assist you, including dealing with age discrimination in employment or credit, negotiating a personal injury settlement, dissolving your marriage, and protecting you from physical, mental or financial abuse and neglect.

CHOOSING AN ELDER LAW ATTORNEY

As you can see, there are many legal issues that you could potentially face as you age. Many of these legal issues are interconnected. Choosing an Elder Law Attorney who is well versed in the legal needs of the elderly will ensure that you receive an "holistic" approach to your legal concerns. Furthermore, for many of you, dealing with the legal issues of aging and disability may be the first time in your life that you have consulted with an attorney and it can be an overwhelming experience for you.

Therefore, it is important to be an informed consumer of legal services. Before you select an Elder Law Attorney, ask several questions, including: How long has the attorney practiced law? What percent of the attorney's practice is devoted to legal issues affecting the elderly and disabled? What is his or her experience in dealing with your specific issue? What will an initial consultation cost? Is the office equipped for your disability? Does the attorney make home visits?

After you have chosen an attorney, set up a meeting with the attorney to discuss your particular issue. Ask how long it will take to resolve your issue, what fees and costs will be involved, what alternatives exist, and who will handle your matter. Finally, ask the attorney to give you a contract or letter stating what you have agreed upon in your discussion.

When choosing an attorney, seek referrals from your family doctor or attorney, close friends, or local agencies that work with the elderly. Most Elder Law Attorneys will welcome the support and involvement of your family in the process of solving your legal concerns. Alternatively, it may be your caregiver that seeks out the assistance of an Elder Law Attorney. To find an attorney, you can contact the Colorado Bar Association at (303) 860-1115, your local chapter of the Alzheimer¡¦s Association, or you can contact The National Academy of Elder Law Attorneys ("NAELA"), at www.naela.org to locate an Elder Law Attorney in your area. NAELA maintains an experience registry of several of its members to assist you in finding an Elder Law Attorney experienced in your immediate issues.

Overall, it is important for you to remain informed throughout the process of solving your legal concerns!

Since 1992, Kathleen Negri ¡V Elder Law Attorney -- has helped families plan for the legal and financial issues raised by long-term illness and death. Since 1997, she also has been a caregiver. She accompanied her mother, Patricia, on her journey through Alzheimer¡¦s until her mother¡¦s death in July, 2004. Kathleen is a licensed Colorado attorney and member of the National Academy of Elder Law Attorneys. She has served on several bar association, educational, and non-profit boards and committees. In 2000, Kathleen was elected by her peers to be a Fellow of the Colorado Bar Association Foundation, in recognition of her outstanding dedication to the welfare of the legal community and the advancement of the legal profession. She received her law degree from the University of Denver College of Law in 1986. Kathleen is a dynamic speaker and workshop leader. Visit her web site at www.SteppingStonesToPeace.com to learn more. Kathleen can be contacted at 303-343-2994.