Hartford, Connecticut Elder Law and Life Planning Lawyers
As you age, there will likely be several issues related to your physical health and financial independence that cause concern. Although a will addresses your wishes regarding the distribution of your assets upon your death, elder law addresses important health, legal and financial issues important to you while you are still alive. That is why some people refer to the practice of elder law as “life” planning, as opposed to “estate” planning.
No matter what you call it, it is important to remember that it is always better to act now, while you are healthy and capable. Once you are mentally incapacitated or unable to decide matters for yourself, you can no longer legally execute legal documents.
Elder Law — Medical Decisions and Advance Directives
First, you should know that there are legal documents called “advance directives.” Advance directives are legal documents that allow you to convey your decisions about end-of-life care ahead of time. They provide a way for you to communicate your wishes to family, friends and health care professionals so as to avoid confusion later on.
A living will is one type of advance directive. A living will instructs your family and health care providers how they are to proceed with medical care intended to sustain your life. You have the right to decide whether or not this type of medical care is to be provided. Issues to be addressed may include:
- The use of dialysis and breathing machines
- Resuscitation if breathing or heartbeat stops
- Tube feeding
- Organ or tissue donation
A durable power of attorney for health care, another type of advance directive, by which you designate a person to make health care decisions for you during a period of time when you are either temporarily incapable (for example, you have a stroke) or permanently physically or mentally incapable.
This person will be the one communicating with your doctors and health care professionals. Decisions such as what kind of medical procedures you will undergo or which rehabilitation facilities you will be admitted to are within the appointed person’s authority under this document.
Additionally, your wishes as to whether or not you want to be kept on life support in the event you are permanently unconscious or in a persistent vegetative state will be carried out by this person.
In Connecticut, you can also designate whether you want to be an organ donor in this document. Select this person carefully to make sure that he or she understands you well enough to make these important decisions for you.
Financial Concerns, Undue Influence and Mental Capacity
There are also legal documents called “financial powers of attorney.” These documents allow you to designate someone to make financial decisions for you. A person acting as your financial power of attorney may walk into a bank and withdraw money from your accounts, list and sell your house and cash in your bonds or stocks, just to name a few things.
As you can see, the person you pick has a lot of power. You will want to select a person to serve in this role that you trust implicitly to preserve, protect and distribute your money.
You should be aware that financial powers of attorney are not valid for an indefinite period of time. Although there is no hard and fast rule, a financial power of attorney that is more than 5 years old will not generally be accepted by a bank. You should update your financial power of attorney on a regular basis to avoid it becoming invalid due to the passing of time.
Probate Court and Conservatorships
If you have not executed advance directives or financial powers of attorney and you are deemed to be physically or mentally incapable of managing your affairs, a family member will have to go to the probate court to request that he or she be appointed as your conservator.
In 2007, the laws regarding conservatorships were changed drastically and it is now much more difficult for a conservator to be appointed. Although the purpose of the changes in the law were to protect an elderly person’s rights and independence, the process is now more time consuming and we recommend that you retain to assist you with your application for appointment.
Estate Planning and Medicaid Eligibility — Avoid Spending Down Assets
Older individuals are increasingly concerned about being cared for in the event they need 24 hour skilled nursing care. Given the cost of skilled nursing care, the elderly fear that all of their money will be spent providing for their care, leaving spouses and family members with medical bills rather than inheritance.
An individual is entitled to Medicaid if that person fulfills the criteria established by the state in which the person lives. State Medicaid plans must comply with requirements imposed both by Title XIX of the Social Security Act and by the Secretary of Health and Human Services.
Title XIX is complicated and has as many rules as exceptions but suffice it to say generally that eligibility is based on an applicant’s income and assets levels.
You should be aware that you will be disqualified for Medicaid benefits if you transfer any of your assets within 5 years of your application for Medicaid benefits, unless the assets transferred are returned and used to pay for your care.
Connecticut also has a program called “Homecare for Elders” designed to keep individuals in their homes as long as possible. A full Title XIX application must be submitted to apply for this program so the 5-year rule applies for this program as well.
Be aware that if a power of attorney or court-appointed conservator does not file for Title XIX in a timely manner, that power of attorney or conservator may be found personally liable.
If you are at a point in your life where you or your loved ones need to address this type of end of life planning, please seek the advice of an attorney experienced in elder law matters to assist you in such planning.
Your personal circumstance as well as your family dynamic will determine what type of “life planning” is right for you. It is important to know that your planning options diminish the longer you wait to act.
To learn how we can help you address these and other elder law issues, contact Gordon, Muir & Foley today to schedule an appointment.
ESTATE PLANNING AND PROBATE ADMINISTRATION PRACTICE GROUP
Carol Anest (Paralegal)
