ELDER LAW 101 Presented for the FPA Philadelphia Tri-State Area May 2, 2005 Spring Symposium LINDA M. ANDERSON, JD, LLM, CELA Certified Elder Law Attorney ANDERSON ELDER LAW 216 South Orange Street Media, PA, (c) 2005 AndersonElderLaw

WHAT IS ELDER LAW?  Estate Planning with Taxes, Control Issues & Disability Issues in Mind  Evaluation of Retirement Living Options  Evaluation of Continium of Care Issues  Trust and Estate Administration (Special Needs and Support Trusts)  Resident’s Rights in Facilities & Nursing Home Negligence  Asset Protection Planning & Medicaid Planning

ESTATE PLANNING & ELDER LAW People of all ages & asset levels should have a “good” set of documents. Why is a “good” Power of Attorney as important as a Will? Keeping control of your medical decisions.

WHAT CONSTITUTES A “GOOD” SET OF ESTATE PLANNING DOCUMENTS? Will –Living Trusts as a Will substitute –Coordination of Beneficiary designations POD/TOD Accounts Joint accounts Financial Power of Attorney, a/k/a General Durable Power of Attorney Health Care Power of Attorney Living Will, a/k/a Advance Health Care Directive

WHY IS A “GOOD” POWER OF ATTORNEY AS IMPORTANT AS A WILL? What is a “Good” Power of Attorney? –Carefully chosen agent –Drafted to reflect your goals for your assets –Can the agent make unlimited gifts of your money? Signing a POA doesn’t mean you give up control! –Ability to make own decisions –Ability to revoke Special Considerations –Avoids Guardianship (Is this important?) –Be careful before you agree to be an agent under POA! –The mysteries of using a POA revealed

KEEPING CONTROL OF MEDICAL DECISIONS Living Wills (a/k/a Advance Health Care Directives) –Can only be signed by individual –Opportunity to appoint a Surrogate –Avoids Guardianship –Understanding the form Mental Health POA Health Care Powers of Attorney (HCPOA) –HIPAA –You need both a Living Will and a HCPOA –Name the same person(s) you named in the Living Will Do Not Resuscitate Orders –Moveable DNR’s

CAPACITY ISSUES Assessing Capacity Different Levels of Capacity –Capacity to Sign a Contract –Capacity to Sign a Will –Capacity to Make a Gift –Capacity to Sign a Power of Attorney Is this a contract issue or a gifting issue? –Variable Capacity Guardianship as Alternative

GUARDIANSHIPS Total vs. Partial Guardianship Test for Lack of Capacity Guardianship – Special Issues –Annual Reports and Accountings –Court Permission for use of Principal and other activities –Loss of Rights to participate in decisions –Limited ability to do MA planning

MEDICAID PLANNING & ELDER LAW Medicaid Myths prevent clients from accessing long-term care Medicaid planning & annuities Medicaid planning & long-term care insurance Trends locally and nationally

MEDICAID MYTHS If I enter a nursing home, the nursing home will place a lien on my home. I may only gift $11,000 per person, per year. If I am married, we can separate our assets. If my spouse is already in the nursing home, it’s too late.

MEDICAID PLANNING & ANNUITIES Medicaid Planning with Annuities –Single person Annuitize vs. Liquidate –Married For the “sole benefit” of community spouse Conversion Annuitization Abusive Annuity Sales

MEDICAID PLANNING & LONG-TERM CARE INSURANCE –High vs. low daily benefit –HHC alone? –Choice of Spouse to insure Example: PA Medical rule re: Qualified Assets of Community Spouse –Combination products Life Insurance & LTC Insurance

TRENDS NATIONALLY & LOCALLY

LINDA M. ANDERSON, JD, LL.M., CELA Linda is 1 of 30 Pennsylvania Certified Elder Law Attorneys, as certified by the National Elder Law Foundation in Pennsylvania. She is a long-term active member of NAELA, the National Academy of Elder Law Attorneys. She has her Masters Degree in Taxation from Villanova. Linda has received the prestigious “AV” rating from Martindale Hubbell. She has also been selected by her peers as a Super Lawyer, as featured in Philadelphia Magazine. Her professional involvements include membership on the Elder Law Committee of the Pennsylvania Bar Association, Co-Chairperson of Delaware County Bar Association Elder Law Committee and Montgomery County Bar Association, Elder Law Committee. She also serves as Vice Chair on the Board of Directors of Horizons Unlimited Geriatric Education Association.