Elder law review - Summary Family Law PDF

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Elder Law Review *no tax *Issue spotter *USE ALL 4 HOURS! CSRA- 126,420 MMMNA- 2,057 Aug. MNHC- 10,459 *LOOK AT ELDER LAW 2017 EXAM  

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Demographics, US population is living longer, but at least part is healthier, affluent Characteristics of aging o Dementia- it’s a process, does not mean you are incapable of handling affairs, as time goes on become more incapacitated. Ethics o Play a large role regarding “who is your client”  Involved in family situation where you do something for one that benefits another etc. o Because there’s potential conflict of interest, can still act, but must be mindful, explain things to client and have them acknowledge o Issues of confidentiality- not all members of family are entitled to know everything  An attorney CAN proceed even if conflict, if feel can provide adequate representation Capacity o No single way to determine whether someone has capacity o Most lawyers have good ability to determine capacity o Neuropsychologist is best (outside professional) (many MDs have no special ability to make these decisions, but the law seems to favor them) o Model rule: a lawyer “may take steps to protect the client” o Eungster Case- lawyers sought guardianship of client after being fired, took actions to indicate the client was capacita  Guardian ad litem- someone appointed by court for particular proceeding to forward best interest of “incapacitated” person.  Counsel for “incapacitated person” puts forward the wishes of the client Age discrimination- some is good, need to be certain age to get ssa, Medicare, Senior citizen discounts o No suspect class- no fundamental right at steak, no quasi suspect - rational basis test o Mergia case- police must retire at 50 legislature must draw a line o Driving exams, eye exams at age 80 in FL, Elder abuse o Who has a duty to report (attorney usually don’y becase of privelage o Usually other healthcare Age discrimination/ employment 1

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o Gross case- “but-for” test. Must be the sole reason you were negatively affected in employment (fairly hard to prove discrimination) Surrogate decision making o Ways to avoid guardianship- a judicial appointment – determination that person lacks (“functional test”) ability to govern affairs, and decides a person(s) who is most appropriate to be guardian o Ways to avoid the need for guardianship:  POAs (financial)  Living wills/ medical directives  Trusts (putting assets in trust so they can be managed)  joint accounts, making gifts during life-time etc. o Durable POA  Immediate and stays in affect  Springing- does not go into affect until future event o Agents- who they should be, what powers they should be given, give power to amend a trust o Most favor POA that is immediate because of problems of establishing condition precedent in springing o Model Form (page 100), blanks- someone wrote in blank “I want to live”, wife added in 3 !!!, issues as to what husband meant. o Fiduciary duties (POAs)  Mower v. Eddie (pg. 107), had lady sign POA in their favor, then assigned her estate to them… BREACH.  Gupta case (111)- husband used POA to borrow $ on insurance policy owned by spouse, spouse sued insurance that they had duty to ensure that use of the money was proper, court said no duty  Munoz case (335)- person encouraged to get reverse-mortgage, then encouraged to take proceeds to buy annuity, then annuity was generating insufficient $, reverse mortgage company did not have duty to see $ used properly. o Trusts/ living trusts- (tax purposes), manage assets, obtain professional advice, if someday incapacitated o Advanced directives/ healthcare proxy/ living will/ DNR order/ psychiatric advanced directive- admission to nursing home, authority to pull plug/ termination of treatment/ agree to treatment  Less is better  SI case- interpreting ambiguous instructions  Factors triggering effectiveness of POA- Paine case, doctor entered DNR without talking to client Death & dying o When counseling terminally ill clients, must be frank and acknowledge they are dying o Conroy case- termination of treatment, privacy, self-determination, purpose of decision making is to effectuate the will of the patients, how you charachterize it is of

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no legal sig., it’s about what the patient wishes. Difference between not starting treatment and discontinuing o No constitutional right to die (assisted suicide)  NJ has passed death with dignity o Hospice care- level of care that can be administered at home etc., die within 6 months, given palliative rather than aggressive treatment. Medicare will pay for Guardianship- judicial process. Role of assigning counsel v. guardian ad litem. o Herke case- bunch of different lawyers, lawyer who defended against guardianship application, made application for fees, q if reasonable, court awarded requested fees. o Standards: incapacity (inability to govern self and mange afairs o Nair case- person lacks speech, difficult to get around, designated people through POA and joint account no need for guardianship o Plenary guardianship (plenary v. full) *best to get plenary o Guardian authorities/ responsibilities  Can seek divorce and make gifts and write trust for someone if court says ok o Representative payees- under SS law- designation for someone to recover and use SS benefits on behalf of someone o Duty of loyaltyIncome and older age o People work past age 65 o Social security- funded by tax on wages  Can collect at age 62, can collect younger if disabled (inability to engage in substantial gainful employment)  Derivative eligibility- when someone else collect (child or spouse) through a worker’s claim/benefits. Spouse as long as didn’t remarry can collect at 60.  Thomas (200) how to prove someone was married  objective test  Amount of benefits: based on earnings, # of years worked, and when you take benefits (early at 62 will be less than if take at 66 of full retirement, or 70 get max benefit) (if can afford, wait and collect at 70)  If less than full retirement age, benefits are reduced by earnings…  If terminal disease, won’t live that long, may not want to defer  Benefits are protected against creditors, appeals procedure for SSA  Controversy with SS, people are living longer, SS $ has been tapped by congress for other purposes, the number of younger people in workforce is smaller than retirees. SS might go bust in 15-30 years.  Possible solutions: increasing retirement age, less benefits, increase taxes, cut off when worker reaches level of income, based on revenue totally and not just wages… o Pensions: public employees and defined benefits plans, private sector, defined pensions have been disappearing. Government does not always fulfill promises… pension plans may go bankrupt

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o 401k (private employment, allows for employer match), 403b (public employment) assets are invested in employee, risk is that you can direct the investments and may make poor investments. IRAs, substantial tax benefits to induce people to save o Personal savings- IRAs, Roph IRA, Annuity- can purchase to give you income stream, often abused and sold to people who don’t understand actual cost… used for wrong reasons often. o Family supportFinancing Healthcare o MEDICARE- 4 parts:  Part A- hospitalization (has deductible and co-pays)  Part B- (monthly premium & copay)  A & B often paid through medigap coverage- additional plan  Part C- prescription drugs  Part D- HMOs  Limitations: must be reasonable and necessary, no experimental procedures, no overseas coverage if not urgently needed.  Home-healthcare benefit- provides person who must be home-bound with skilled nursing care (not help with ADLs (bathing etc)- care only license professional can provide.  Future of medicare, program is in danger of collapsing, as people are added and costs go up. o MEDICAID  Joint fed/state program (both have rules)  Medicaid planning  Medicaid waivers- ex: Medicaid pays for nursing home under waiverapplication that state submits to feds, waive some aspect of program, think it will be cost-effective to do so- rather pay for assisted living if can show they would otherwise be in a NH. Or home-health care benefits which would be cheaper than NH.  Eligibility:  Categorical- ex- if get SSI auto get Medicaid (auto needy)  Medically needy- people who spend down- income at certain level, but medical needs brings them down. o Income and resource test (2k for H&W resource test)  Exceptions- private residences, car o To determine applicant, look at resources of both spouses o To determine income, look at applicant  Spousal refusal- cannot make you ineligible, but does not prevent medicaid from going after assets  Transfers  5-year look back for any asset that’s transferred for below FMV.

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o Penalty period- assets transferred/ average monthly cost of care (10k), gives you # of months of ineligibility o Clock doesn’t start running until you are Medicaid eligible  Transfer penalty does not apply if transfer was for reasons other than Medicaid ineligibility (difficult loophole)  MMMNA (Minimum monthly maintenance needs allowance)- if community spouse’s income is less than $2,057, entitled to the difference from inst spouse. o Ex: comm spouse has 1,057 income, instiutial spouse has 2,000  comm spouse can take 1,000 of income from inst.  If inst has $0 income, then can look at assets over and above the combined assets limit (CSRA 126,420 74k)- get annuity based on life expectancy of community spouse  CSRA-(community spouse resource allowance) h&w has $200k in countable resources  they can keep $126,420, must spend down the rest (74k)  Lifetime annuity (immediate will pay right away), income stream  Medicaid liens/ estate recovery- exceptions- If transfer assets for benefit of child with disability  Medicaid planning- ethical to impoverish self to obtain gov’t assistance… legal, set of rules, just following…  Easiest way: Transfer assets and IN 5 years, won’t be counted anymore o If transfer today, and need NH in 2 years, will only have to pay 3 years out of pocket as opposed to waiting to transfer until need NH  Transfer assets to safe-have- spouse, son/daughter who took care of yr 2 years prior to NH, life estates, special needs trusts  Spend down assets- purchase renovations for house, new car, personal services contract (must be reasonable payment for care) o Ex: 3 yrs ago, transferred 100k, now apply for medicaid  penalty (100/10= 10 months of ineligibility) o 10,000,000/ 10= 1000 months ineligible  do not apply now, wait 2 more years, total of 5 years before make application  Long-term care insurance- pays for NH, can cover gap/ ineligibility  Long term care- continuing care, living independently/ at home/ with assistance/ assisted living program.  Continuing care community  Aging in place Reverse mortgages- get income stream from real estate or lump sum, and it’s not paid off until you die or cease to live in property. Careful with Medicaid planning and transferring home with reverse mortgage on it.

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Nursing home eligibility- based on if lack certain amount of ADLs o Nursing home reform act- requires gov’t to do surveys to make sure NH facility that accept Medicaid meet gov’t standards. No good remedy, b/c if close facility, what to do with residents. Transfer trauma. o Bill pf rights for nursing home residents- protect person from being discharged for certain types of cause. Collisions of rights of workers and rights of residents- discrimination is violation of employee rights Assisted living- different options. People don’t want to leave. Negotiated risk- can you tell assisted living program that I will bring in extra care and relieve you of liability… Protecting client from injury – psych patient who murdered someone in facility Continuing care community- go in at independent level, will provide whatever level of care you need as it goes up o Life care contracts-Up-front fee, and monthly fee on top of it o Modified contracts- Up-front fee, and monthly fee, lower fees, limited services, Provide other services with extra fee- another way to do it o Fee-for-service contracts- entrance, monthly fee, lowest fees but does not cover health related services.  Provide care, may not be at same place. If with spouse… may be separated. Reporting requirements- ethical issues for litigating on behalf of abuse victims. If been on Medicaid, and recovery, who does recovery go to? Medicaid gets reimbursed. (if wrongful death from abuse and brought on behalf of survivors, protected)

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