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Elder Law Issues Helping Your Parents, and Yourselves Boston College Alumni Association, November 12, 2015 BOSTON COLLEGE WORLD WIDE WEBINAR SERIES:
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Alice B. Taylor, Esq. Boston College Law School, J.D. 1996 University of Virginia School of Engineering and Applied Science, B.S. 1978 Member of the National Academy of Elder Law Attorneys (NAELA), Massachusetts chapter Private bar panel of the Boston College Legal Assistance Bureau’s Elder Legal Services Project Solo practice based in Waltham, Massachusetts – estate planning, special needs and elder law, and probate/administration of decedents’ estates 2
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Are you attending this webinar as (choose all that apply) A. Adult with elderly parent(s) or other relative B. Professional dealing with elders (e.g., medical or social work) C. Elder law attorney D. Other legal professional E. Other 3
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Introduction Aging baby boomers want to maintain a high degree of independence, even as many are taking care of their own parents, the "oldest old" (over 85). What are these groups' age-specific legal issues? How can an elder law attorney help you avoid stressful and costly situations as you and your parents transition through these years? 4
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Introduction Learn about the essential documents, which everyone should have, and why they are important. Learn the difference between powers of attorney, health care proxies, living wills, and guidelines for substituted decision-making. A little bit of planning goes a long way - and not everyone needs a trust! "But I thought" for seniors and their families - Elder Law Mythbusting 101. 5
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True or False? Medicare and Medicaid are two names for the same program. If an elder has Medicare, he or she is “insured.” A “MediGap” policy will cover nursing home costs. If my elderly mother needs nursing home care, she can still give each of the grandchildren $14,000 a year tax free (or pay their tuition bills), as she has always done. 6
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Do you, or the elder you are caring for, have: (choose all that apply) A. Last Will and Testament B. Advance Directive or Living Will Declaration C. Health Care Proxy or Power of Attorney for Health Care D. DNR E. MOLST 7
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Overview Who will make decisions for you when you can’t make them for yourself? Who knows what and how much medical treatment you want? What happens if no one knows? What’s the difference between an Advance Directive, a Health Care Proxy, a Living Will, a MOLST and a DNR? 8
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Overview, continued What happens if you are no longer able to pay your bills or keep up with your finances? Have you saved enough money for out-of-pocket medical expenses, deductibles and co-pays? What about long-term care? What’s the best way to make sure YOUR wishes are followed? 9
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Durable Power of Attorney Allows a capable person to grant another person authority to act for him/her A PRINCIPAL / AGENT relationship – legal effect ends with the death of the Principal Can be immediate or “springing,” taking effect only upon the occurrence of an event, e.g., the principal’s incapacity DURABLE ≡ continues in effect following incapacity Part of Uniform Probate Code, or separate Uniform Power of Attorney Act In Massachusetts and other states, for financial/property decisions only – NOT for health care decision-making 10
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Powers to Include – DPOA Banking powers Government Entitlement powers Retirement Planning powers Trust powers Real Estate powers – specific to parcel Self-dealing and Gifting powers Florida – add witnesses! 11
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Who Should I Choose? Durable Power of Attorney Choose someone who can actually manage your finances, pay your bills, keep on top of things Choose someone who knows what you would do if you were able If one of your children helps you, encourage transparency with siblings Don’t worry about being “fair” 12
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Other Financial Relationship Documents Joint Ownership Trust Representative Payee (Social Security, Veterans Benefits) Daily Money Management Services 13
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Health Care Proxy or, Power of Attorney for Health Care Names an AGENT (or PROXY) to make health care decisions if the patient is unable to MAKE or COMMUNICATE his/her own decisions In Massachusetts, takes effect ONLY IF a doctor certifies that the patient has lost that ability – SPRINGING The patient can re-gain capacity, after which the AGENT no longer has authority Includes HIPAA Authorization, i.e., the Agent is automatically authorized to receive Protected Health Information 14
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Who Should I Choose? Health Care Proxy In Massachusetts, name ONE agent, plus one or more alternates – no joint decision-making (Why?) Who can talk to doctors and hospitalists? Who can show up on time to meetings? Who knows what I would want? Have we talked about it? Don’t worry about being “fair” 15
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OK, we have a health care proxy, whew! (We’re done, right?) What types of decisions can be made? Who should have a copy? Who needs the original? What if my mother or father changes his/her mind about who should be his/her health care agent? Sandwich generation: what about my college-age son or daughter? 16
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Other Health Care Documents HIPAA Authorization Living Will Declaration Advance Directive MOLST – Medical Orders for Life Sustaining Treatment DNR – Do Not Resuscitate “The Conversation Project” 17
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Guardianship / Conservatorship The court, upon petition, may appoint a Legal Guardian, to make health care decisions for an “incapacitated person” The court, upon petition, may appoint a Conservator of a “protected person’s” assets and property Intrusive – matter of public record, and courthouses are open Expensive – $$, often involves more than one trip to court CAN BE AVOIDED with valid Durable Power of Attorney and Health Care Proxy documents 18
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Health Insurance for the Elderly - Medicare NOT means tested – can be wealthy and still have Medicare as primary insurance Hospitalization-type policy (Part A); doctor visits (Part B); Rx (Part D) DOES NOT pay for nursing home beyond a certain point and only under certain conditions 19
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Health Insurance for the Elderly - MediGap Private insurance Typically offered as part of a retirement package, or can be purchased separately Pays benefits ONLY IF Medicare pays – if Medicare says “not medically necessary,” then MediGap won’t pay either Covers Medicare deductibles and co-pays, which can be significant 20
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Health Insurance for the Elderly - Medicaid Means-tested: health insurance for the poor of any age Many different programs, depending on whether elder resides in the community Some community-based programs have deductibles How much can you have and be considered “poor?” Are some assets not countable? 21
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Medicaid for Long-Term Care Complicated rules Asset test AND income test Lookback period AND disqualification period Single or married – affects planning options Medicaid is the largest source of payment for LTC – over 62%
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Mythbusting 101 Mom can give me (or her grandchildren) $14,000 each year and still receive Medicaid. Dad should re-write his Will because I don’t know whether he has disposed of his estate fairly. Avoiding probate should be a primary goal of estate planning. If all of my property is in trust, there won’t be any tax on it. 23
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Mythbusting 101, continued Adding my name on to Mom or Dad’s house title is a good way to avoid probate – it’s simple! Selling a house for $1 is not the same as a gift. If I hold Mom’s power of attorney, I can do anything I want with her money. 24
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Conclusion Resistance / procrastination / fear – not helpful to yourself or your family Guardianship / conservatorship – to be avoided if possible Good news! An elder law / estate planning attorney can help you draft documents that will give your family peace of mind and keep you out of court. 25
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Resources - Websites National Academy of Elder Law Attorneys – www.naela.orgwww.naela.org 2015 ELDER LAW EDUCATION PROGRAM – Taking Control of Your Future: A Legal Checkup, available at http://www.massbar.org/media/1580153/elep.pdf http://www.massbar.org/media/1580153/elep.pdf http://newoldage.blogs.nytimes.com/ (archives) http://newoldage.blogs.nytimes.com/ www.AgingCare.com www.TheConversationProject.org 26
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Resources - Books “Can’t We Talk About Something More Pleasant?” A Memoir by Roz Chast “Being Mortal: Medicine and What Matters At The End” by Atul Gawande “Mom Always Liked You Best: A Guide for Resolving Family Feuds, Inheritance Battles & Eldercare Crises” by Arline Kardasis, Rikk Larsen, Crystal Thorpe, and Blair Trippe “A Bittersweet Season: Caring for Our Aging Parents – and Ourselves” by Jane Gross “How to Say It ® To Seniors: Closing the Communication Gap with Our Elders” by David Solie 27
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Resources - Articles / Essays “Autonomy and End-of-Life Decision Making: Reflections of a Lawyer and a Daughter,” by Prof. Ray D. Madoff, Boston College Law School http://law.bepress.com/cgi/viewcontent.cgi?article=3157&context=expresso http://law.bepress.com/cgi/viewcontent.cgi?article=3157&context=expresso http://www.nytimes.com/2015/05/30/your-money/strengthening-troubled- sibling-bonds-to-deal-with-an-aging-parent.html http://www.nytimes.com/2015/05/30/your-money/strengthening-troubled- sibling-bonds-to-deal-with-an-aging-parent.html http://www.nytimes.com/2012/01/15/opinion/sunday/bargaining-for-a-childs- love.html http://www.nytimes.com/2012/01/15/opinion/sunday/bargaining-for-a-childs- love.html http://www.nytimes.com/2014/09/20/your-money/estate-planning/parents-the- children-will-be-fine-spend-their-inheritance-now.html http://www.nytimes.com/2014/09/20/your-money/estate-planning/parents-the- children-will-be-fine-spend-their-inheritance-now.html 28
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Questions & Answers For follow-up: Alice@ATaylorLaw.comAlice@ATaylorLaw.com Please add “BC Alumni Webinar” to Subject line Thank you! 29
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