BOSTON COLLEGE WORLD WIDE WEBINAR SERIES:
Elder Law Issues
Helping Your Parents, and Yourselves
Boston College Alumni Association, November 12, 2015
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
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Are you attending this webinar as
(choose all that apply)
A.
B.
C.
D.
E.
Adult with elderly parent(s) or other relative
Professional dealing with elders (e.g., medical or social work)
Elder law attorney
Other legal professional
Other
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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?
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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.
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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.
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Do you, or the elder you are caring for, have:
(choose all that apply)
A.
B.
C.
D.
E.
Last Will and Testament
Advance Directive or Living Will Declaration
Health Care Proxy or Power of Attorney for Health Care
DNR
MOLST
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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?
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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?
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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
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Powers to Include – DPOA
•
•
•
•
•
•
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Banking powers
Government Entitlement powers
Retirement Planning powers
Trust powers
Real Estate powers – specific to parcel
Self-dealing and Gifting powers
Florida – add witnesses!
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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”
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Other Financial Relationship Documents
•
•
•
•
Joint Ownership
Trust
Representative Payee (Social Security, Veterans Benefits)
Daily Money Management Services
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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
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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”
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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?
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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”
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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
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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
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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
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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?
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Medicaid for Long-Term Care
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•
•
•
•
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%
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.
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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.
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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.
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Resources - Websites
• National Academy of Elder Law Attorneys – www.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://newoldage.blogs.nytimes.com/ (archives)
• www.AgingCare.com
• www.TheConversationProject.org
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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
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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://www.nytimes.com/2015/05/30/your-money/strengthening-troubledsibling-bonds-to-deal-with-an-aging-parent.html
• http://www.nytimes.com/2012/01/15/opinion/sunday/bargaining-for-a-childslove.html
• http://www.nytimes.com/2014/09/20/your-money/estate-planning/parents-thechildren-will-be-fine-spend-their-inheritance-now.html
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Questions & Answers
• For follow-up: Alice@ATaylorLaw.com
• Please add “BC Alumni Webinar” to Subject line
• Thank you!
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