Frequently Asked Questions – Elder Law Issues

It is a common misconception that spouses can easily and automatically take over each other’s affairs, if necessary.  That is not always the case with everything.  There may be some accounts that are not in your spouse’s name, so they may not be permitted access.  That is why one of the most important tools, in both elder law planning and estate planning, is the power of attorney. For many married clients, a joint revocable living trust is an even better solution.

A power of attorney is necessary in order to give someone authority to manage your affairs whenever you are no longer able to do.  Having a power of attorney in place is especially important as we grow older, as doing so most often results in decreased ability to handle one’s own affairs.  So, even if you are married you need to take the time to create a power of attorney and, for most couples, a married joint revocable trust.

An elder law attorney typically handles issues regarding the elderly or planning for one’s own later years.  These types of issues generally relate to nursing home care, estate planning, and conservatorships, for example. Elder law attorneys receive specific training and experience in the applicable legal issues affecting seniors. This makes elder law attorneys better equipped to understand and meet the needs of their elder clients and their families.  An experienced and qualified elder law attorney is also very skilled at anticipating potential legal issues facing seniors.  All in all, the practice of elder law involves legal advocacy, education, counseling and future planning.

The first step you should take, before actually starting the conversation, is to talk to all involved family members to make sure you are all on the same page.  Resolve any misunderstandings or disputes ahead of time so that you can approach your parents with a united front. Doing so will likely reduce the risk of putting your parent on the defensive. This doesn’t mean the entire family needs to be in on the conversation.

The planning is much easier if your parent still has some decision-making capacity.  In that case, the next step is talking with an elder law attorney to discuss the elements of the estate or incapacity plan that need to be included. When there are several siblings, for the purposes of transparency, it is best to have all of the children participating in the discussions if at all possible.

Balancing your parent’s need for independence with the need to keep them safe can be a very big challenge.  How to approach this issue truly depends on the issues each family faces.  In many cases, if a conservatorship is necessary or anticipated, the probability of losing independence can be overwhelming or disconcerting.  Conservatorships should never be sought simply because a parent makes a decision that you do not understand or agree with. A conservatorship should not be sought based only on a particular disability or medical diagnosis.

Medi-Cal is California’s state Medicaid program.  Like all other Medicaid programs, it is funded by both federal and state funds but run by the State.  The California Department of Health Care Services (DHCS) manages long-term care programs in California, including nursing home services.  In general, skilled nursing facilities offer round-the-clock skilled nursing care in addition to other supportive services. Nursing homes are typically rather expensive, averaging over $8,000 per month in California. Most people cannot afford to pay their own nursing home expenses. That is where Medi-Cal benefits come in.

This particular myth can cause you the most trouble if you buy into it.  Far too many people believe that they can simply give away their property in order to qualify for long-term care coverage through Medi-Cal.  In order to qualify, you must meet some rather strict asset restrictions. Medi-Cal currently also imposes a thirty month asset transfer restriction. That means, if you apply for Medi-Cal and you transferred assets in order to qualify within the past 30 months, you may not qualify.  Experienced and qualified elder law attorneys understand these restrictions and also know alternative planning techniques that can often avoid these problems.