Elder Law

Strong Advocacy for Elders

Elder Law is a specialized area of law that deals with the issues faced by the elderly. This area of law includes Estate Planning, Wills and Trusts, Conservatorship, Guardianships, Health Care Planning, Medicare/Medicaid Planning, and Elder Rights.

Seniors are more active and live longer than ever before, but they have their own set of legal concerns that have rarely been addressed by earlier generations. Older people have always needed Wills and Estate Planning to pass their assets to their beneficiaries. Now that people are living longer, there are more issues about their future care that have to be included, such as plans for housing, medical care, and what to do if the person should become incapacitated.

One of the critical questions that is being raised is how to provide long-term housing, with increasing levels of care, as the seniors age. This is causing the growth to a whole new level of senior living facilities and raising many legal questions about contract rights and the power of facilities to discharge residents. As health care becomes more and more expensive, seniors are also in need on information about long-term care insurance and government benefits.

Elder Law Attorneys Specialize in Helping the Elderly

Many elderly persons rely entirely on their children, family members or other trusted individuals to help them. This dependence upon caregivers or family members makes an older person more vulnerable to abuse and financial exploitation. Legal arrangements and protective actions by family may be necessary to shield loved ones from making bad decisions or from being taken advantage of. Our attorneys are here for you.

Elder Law

The lawyers of Phillips & Mille Co., L.P.A. have seen an increasing need for dependable legal advice that addresses the interests of two groups that continue to grow in size: the elderly and their middle-aged adult children. As people age, they become aware of the need to anticipate and plan for asset protection, long-term care, and medical emergencies for themselves and their elderly parents. Many retired people can benefit as well from advice about Medicaid planning, powers of attorney and living wills.

Many middle-class families face the potential for problems with eligibility for Medicaid. As a needs-based program, Medicaid limits the value of assets that an individual or family can own before benefits are awarded. Our lawyers will work with you to assess your current and projected eligibility for Medicaid benefits. We’ll also suggest ways to maximize the value of your exemptions so that you won’t have to spend down more assets than absolutely necessary to protect your assets from Medicaid in the event of long-term needs. Additionally, we can advise you about arranging and financing in-home assistance or residential care as useful alternatives to conventional nursing home care, which is generally a choice of last resort.

We encourage our clients to plan for medical emergencies and extended disability through powers of attorney and living wills. These instruments appoint trusted persons to handle your medical treatment, financial affairs, and even difficult life support decisions under defined conditions of incapacity, coma or terminal illness.

Medicaid Resources

  • Medicaid Law: an Overview  Medicaid is a medical assitance program jointly financed by state and federal governments for low income individuals. It was first enacted in 1965 as an amendment to the Social Security Act of 1935. Today, Medicaid is a major social welfare program and is administered by the Centers for Medicare and Medicaid Services, formerly known as the Health Care Financing Administration.
  • Medicare Law: an Overview  Medicare was enacted in 1965 as one of President Lyndon B. Johnson’s Great Society programs. The Medicare system was originally administered by the Social Security Administration, but in 1977 management was transferred to the Health Care Financing Administration.

Most nursing home admissions happen under extremely difficult situations. It can be an overwhelming task of finding the best nursing home placement for a loved one. For example, where do you begin? Although this is a job that no one wants, it can be done with advance planning.

The Center for Medicare & Medicaid Services (CMS) (a federal government agency) has as a part of its Web site  Nursing Home Compare comparing nursing homes, which identifies facilities that have a history of poor performance. The Nursing Home Compare reports nursing homes that have repeatedly violated state and federal health and safety rules and that rank in the worst 5 to 10 percent of all inspected facilities in a given state. Using Nursing Home Compare, you can obtain detailed inspection information about each nursing facility that interests you, comparing various government-rated “quality measures” such as:

• Percent of Residents Who Have Moderate to Severe Pain;
• Percent of High-Risk Residents Who Have Pressure Sores;
• Percent of Residents Who Were Physically Restrained; and
• Percent of Residents Who Spend Most of Their Time in Bed or in a Chair.

The Nursing Home Compare Web site also rates the care and services that each facility provides to its residents, and allows you to view how each facility stacks up in staffing hours for each type of health care worker against the state and national averages.U.S. News and World Report also recently started providing rankings of America’s nursing homes. The U.S. News rankings rely on Nursing Home Compare but provide some advanced search engine capability. According to U.S. News, their new feature America’s Best Nursing Homes addresses these and other issues. Nursing homes are presented in tiers within each star category, based on their total stars in all three of the major areas. The topmost tier, for example, consists only of five-star homes that got 15 stars. The next tier down is five-star homes with 14 total stars, and so on. Within each tier, nursing homes are listed alphabetically. If you’re looking for a nursing home by location, and turn up too many, search terms can be combined in order to narrow the results. For example, perhaps you want to search just for nursing homes that have a religious affiliation, or that accept Medicaid residents. Or you can launch a multipronged search, perhaps searching for non-profit four-star nursing homes that accept Medicaid and are located within 25 miles of a particular city.

Placing your loved one in a nursing home that accepts Medicaid is vitally important and you should plan to use the services of a Certified Elder Law Attorney. At Phillips & Mille, Dennis Mille is a Certified Elder Law Attorney (by the National Elder Law Foundation (www.nelf.org) which is recognized by the Ohio Supreme Court) and can help navigate the family through the complicated Medicaid rules and regulations to help preserve family assets (even if the applicant is already in a nursing home)

Another free Web site that lets you compare nursing homes is MemberoftheFamily.net, which features easy-to-read, color-coded assessments of nursing homes nationwide.

Despite the ratings, in my experience nothing can substitute for visiting a nursing home in person. Virtually every nursing home will have some deficiencies. To find the best possible nursing home for your family’s situation, the first step is to determine what is most important for your family in looking for a facility. The resident’s needs and desires must be included in this evaluation. Consider variables such as location of the facility, whether a special care unit (such as for dementia) is available, and what types of payment sources are accepted.

The second step is to identify the facilities in your area which meet the criteria you have established.

Step three is to tour those facilities you have identified in step two. You don’t need to schedule your visits in advance. If you show up during regular business hours, you should be able to meet with an administrative staff member, who should be able to answer all your questions. You will also want to tour a second time, in the evening or on the weekend, to see if there is a drastic difference in the atmosphere of the facility or the care being provided. It is important to tour at least two facilities so you can see the difference in the physical facility and the staff.

While you are touring the facility, pay attention to your gut feelings. Ask yourself:

• Do I feel welcome?
• How long did I have to wait to meet with someone?
• Did the admissions director ask about my family member’s wants and needs?
• Is the facility clean?
• Are there any strong odors?
• Is the staff friendly?
• Do they seem to genuinely care for the residents?
• Do the staff seem to get along with each other?

Listen and observe. You can learn a lot just by watching and paying attention. And ask questions. You want to be sure that the facility is giving proactive care, not just reacting to crisis. Here are a few examples of the types of questions the staff should be able to answer:

• How do you ensure that call lights are answered promptly, regardless of your staffing?
• If my father is not able to move or turn himself, how do you ensure that he is turned and does not develop bedsores?
• How do you make sure that someone is assisted with the activities of daily living like dressing, toileting and transferring?
• Can residents bring in their own supplies?
• Can residents use any pharmacy they wish?
• How many direct care staff members do you have on each shift? Does this number exceed the minimal number that state regulations require, or do you just meet the minimum standard?
• What sources of payment do you accept?• How long has the medical director been with your facility?
• What is your policy on family care planning conferences? Will you adjust your schedule to make sure that I can attend the meeting?

Don’t Forget Expert Legal Help.

In addition to finding the facility you like best, don’t forget that you need expert legal assistance as part of the nursing home planning process. Without proper planning and legal advice from an experienced Certified Elder Law Attorney, many families needlessly squander their life savings on long-term care, and unnecessarily jeopardize their own care and well-being, as well as the security of their family. The way to get the best care in any nursing home is to make sure that you choose a nursing home that accepts Medicaid and work with a Certified Elder Law attorney who specializes in Medicaid Asset Protection.

What is the goal of this type of planning? The goals differ from person to person and family to family. Generally, for a married couple the most important goal is to ensure that the spouse remaining at home is able to live the remaining years of his or her life in utmost dignity, without having to suffer a drastic reduction in his or her standard of living. For a single or widowed client, the most important goal is typically to be able to enjoy the highest quality of life possible in the event of an extended nursing home stay. When there is an adult child or grandchild who is disabled, the primary goal is typically to protect assets to be used for the benefit of that disabled family member who is often also receiving Medicaid. Money that is protected through proper planning can be used to provide a nursing home resident with an enhanced level of care and a better quality of life while in a nursing home and receiving Medicaid benefits.

For instance, protected assets can be used to hire a private nurse or a private health aide — someone to provide one-on-one care to the resident — to help the resident get dressed, to help the resident get to the bathroom, to help the resident at mealtime, and to act as the resident’s eyes, ears and advocate. Money that is sheltered through proper planning can also be used to purchase things for the nursing home resident or disabled child that are not covered by Medicaid — such as special medical devices, upgraded wheel chairs, transportation services, trips to the beauty salon, etc.

If you are interested in further information and planning please call us at Phillips & Mille at 440-243-2800. We look forward to providing you with valuable assistance.

Elder Law in Ohio

Organizations Related to Elder Law

  • National Academy of Elder Law Attorneys  The NAELA membership is comprised of attorneys in the private and public sectors who deal with legal issues affecting seniors and people with disabilities. Members also include judges, professors of law, and students.
  • National Academy on an Aging Society  As a non-partisan public policy institute, the Academy actively conducts and compiles research on issues related to population aging and provides information to the public, the press, policymakers, and the academic community.
  • National Council on Aging (NCOA)  Founded in 1950, the National Council on Aging (NCOA) is a nonprofit organization with a national network of more than 14,000 organizations and leaders. Our members include senior centers, area agencies on aging, adult day service centers, faith-based service organizations, senior housing facilities, employment services, consumer groups, and leaders from academia, business, and labor.
  • National Elder Law Foundation  Elder law attorneys may now be certified in this field by the Board of Certification of the National Elder Law Foundation (NELF), a non-profit organization founded in 1993, and dedicated to the development and improvement of the professional competence of lawyers in the area of elder law. The purpose of the certification program is to identify those lawyers who have the enhanced knowledge, skills, experience and proficiency to be properly identified to the public as certified elder law attorneys.
  • Center for Medicare Advocacy, Inc.   The Center for Medicare Advocacy works to advance fair access to comprehensive Medicare coverage and quality health care for older people and people with disabilities by providing the highest quality analysis, education, and advocacy.
  • http://www.veteranaid.org/index.php

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