The Top Legal Concerns for the Elderly

You may have to make difficult decisions while you still have the mental and physical capacity to deal with financial, legal and health care issues. Personal and health affairs management, estate planning and administration, and long-term care and how to pay for assisted living or nursing home care are needs that must be addressed by all of us—the sooner, the better.

In the health arena, powerful instruments give authority over life and death decisions:

  • Advance medical directives, such as medical powers of attorney, living wills and health care declarations or proxies.
  • Medical and life-sustaining choices, such as the do-not-resuscitate order and related personal life considerations.

These documents help you ensure that family, friends and providers carry out your wishes.
Under the umbrella of estate planning and administration, seniors will want advice and counsel on:

  • The preparation of documents such as wills, trusts, and durable general or financial powers of attorney.
  • Real estate titling, sale, conveyance or gifting.
  • Advance planning in order to qualify for future Medicaid benefits.
  • The financial and tax implications of any of these proposed actions, as well as real estate, gift and estate taxes.

Planning for incapacity isn’t fun, but facing it is wise. Consider the appointment of:

  • An attorney-in-fact.
  • An executor or personal representative of one’s estate under a will or a trustee under a trust.
  • A guardian or conservator for you and/or your property.
  • A representative payee or other formal or informal fiduciary.

Many of these roles are similar, but there are important differences regarding who has control of what and under what circumstances. For example, power of attorney allows someone to act on your behalf. But if that power of attorney is durable, it remains in effect even if you become incapacitated and are unable to make decisions for yourself.

You’ll probably want to look into how capacity is determined in your state and what level of capacity is required for various legal activities where you live or own property. You may be the subject of guardianship/conservatorship proceedings or other protective arrangements — who should represent you? You’ll want a plan to allocate responsibility to someone you trust.
An attorney can explain who can have what level of control over your finances, your life and any trusts.

End-of-life medical and living assistance

Long-term care or home care insurance may be something you’ll want to explore. It’s prudent to understand your rights as a patient or resident of hospitals, nursing homes, assisted-living facilities and continuing care retirement communities. Key considerations include admission, transfer and discharge policies, and quality of care.
Among other legal issues to home in on are:

  • Housing and financing options, such as mortgage alternatives, renovation loan programs, life care contracts and home equity conversions.
  • Pensions, retiree health benefits and unemployment benefits.
  • Income, estate and gift tax advice, especially the consequences of plans offered.
  • Age or disability discrimination in employment or housing. What are your rights?
  • Litigation and administrative advocacy for contested wills, capacity issues, elder abuse, financial or consumer fraud, fiduciary administration, public benefits, nursing home torts and discrimination.

This checklist of legal issues you may face can serve as a good preliminary overview of areas you’ll want to consider. Without proper planning, the estate you worked to build could go to a long-term care facility instead of to your loved ones. Our office will be happy to consult with you to address these legal concerns.

Reach out to Roz Carothers and her team at Triplett & Carothers to learn more.