Phoenix Elder Law Attorneys
Elder law is a general name for a number of legal and practical issues with which each of us or our friends and relatives may be confronted in later life. Not all issues apply to everyone and none may apply in individual cases. Some issues and problems can be anticipated and prepared for in advance of any need. In other instances, it may be necessary to take certain legal actions to remedy situations which have already occurred. Whatever may be your situation, the attorneys at Platt & Westby stand ready to provide experienced and aggressive legal services and representation as may be required by your situation or that of a loved one who needs legal help.
Long Term Care
A person needs long-term care when a chronic condition, trauma, or illness limits that person's ability to carry out basic self-care tasks, called activities of daily living (ADLs), (such as bathing, dressing or eating), or instrumental activities of daily living (IADLs) (such as household chores, meal preparation, or managing money). The most common source of long-term care comes from informal or family caregivers. Formal caregivers are volunteers or paid care givers associated with a service system.
Most people who need long-term care live at home or in community settings such as assisted living facilities, not in institutions. However, most assisted living facilities discharge residents whose cognitive impairments become moderate or severe or who need help with transfers such as from a wheelchair to a bed. This limits the ability of these people to find appropriate services outside of nursing homes or other institutions. The attorneys at Platt & Westby can help provide assistance in structuring assistance from formal and informal care givers to provide for the maximum amount of independent living at a cost which is sustainable by the care recipient's financial ability.
Medicaid and AHCCCS
When created, Medicaid would only pay for nursing home care. Since then, legislation has allowed for exceptions or "waivers" which would allow state programs such as AHCCCS to pay for care in assisted living facilities or at home.
Financial Eligibility Rules
Since AHCCCS is Arizona's version of the Medicaid program and is partially funded by Medicaid, the Medicaid financial eligibility rules apply. A Medicaid or AHCCCS recipient is required to have less than $2,000 in resources, defined as an asset which can be utilized to produce income or cash payments. Certain important assets are excluded from counting as a resource for qualification to receive benefits. These include a personal residence, a life insurance policy with less than $1,500 cash value, a prepaid funeral and burial plan and a car if necessary for transportation and care. However, if the home is worth more than $500,000 it would prevent an individual from being eligible for Medicaid/AHCCCS. A home is subject to lien recovery by Medicaid/AHCCCS after the death of the recipient. Money invested in an IRA, 401K or any other tax qualified account is not counted as a resource if the recipient is older than 70 years, but mandatory withdrawals are counted as income.
Income of a recipient is required to be contributed toward the Medicaid/AHCCCS costs with Medicaid/AHCCCS picking up the balance of the costs. A recipient will be allowed an allowance of $45 per month for personal care. There is also an allowance for medical costs and insurance premiums not covered by Medicaid/AHCCCS. There are special rules intended to prevent the complete impoverishment of a spouse who is not in need of long-term care.
If an individual's resources exceed $2000, the individual would be required to "spend down" his or her resources to the $2000 level. That level can be reach by spending on legitimate expenses or by gifting or a combination of the two. There are limits as to how much can be spent down or given away in any given month, which varies from state to state, usually in the $3000 to $4000 range, with annual cost of living adjustments. There is a 60-month period of "look back" dating from when the Medicaid/AHCCCS benefits application is first made. If the first application for benefits is more than 60 months after the spending down or gifting is made, there is no penalty regardless of how much is given away. If the application is made in the 59th month, the "look back" is for 60 months and the applicant must wait whatever spend down time period is required to consume the resources which were available 60 months earlier, even though the recipient has less than $2000 in resources at the time of application and even if the "spend down" period is greater than 60 months. The attorneys at Platt & Westby can help in the planning and execution of the "spend down" period in advance of the application for Medicaid/AHCCCS benefits.
Medicaid/AHCCCS has a claim against the home of the recipient after death for recovery of the amounts actually paid for the recipient's care. This does not include the amounts of the recipient's income which was used to offset the total cost of care. Some states, as a matter of policy, do not make a claim against the property if the surviving spouse is living in the home. There is a common belief that the states do a poor job of recovering money from assets that should be subject to recovery and that some property transfers into trusts or in joint tenancy may be escaping the recovery process. However, budgetary deficits and changes in state leadership could result in a much more aggressive recovery effort in the near future. Do not be deceived by someone's claims to have a plan to pass your home to your heirs and avoid recovery by Medicaid/AHCCCS. Let the attorneys at Platt & Westby review any such plan for its legality and whether the plan will openly and legally achieve the desired result.
Long Term Care Insurance
There are many Long Term Care Insurance policies available from a multitude of Insurance Carriers, some good and some bad. Some policies will pay the full cost of certain long term care while others will pay only a percentage, e.g., 80%. It will do little good to have a policy that pays only 80% of the cost of long term care if the insured does not have sufficient resources with which to pay the 20% co-pay. The annual/monthly premiums for a long term care policy will increase with the age of the insured. The closer an individual is to the age that they will need to make a claim under the policy, the greater will be cost of the annual/monthly premium. A younger person has more time, from the Insurance carrier's point of view, to pay in the amounts necessary for the risk of eventually having to pay out on the policy. An older person who waits too long to obtain long term coverage will face extremely high premiums since they are statistically more likely to need to make a claim soon. An individual who waits too long may find themselves excluded from coverage because of medical conditions which make long term care coverage an almost certainty. A diagnosis such as diabetes, heart disease and cancer can make an individual uninsurable. Finally, it is critical to enlist the aid of an experienced and industry certified Insurance Representative who specializes in long term care insurance as opposed to a life insurance/annuity sales person.
Estate Planning Lawyers in Arizona
Estate Planning is a generalized designation for a variety of legal tools that range from a simple Will to revocable trusts for individuals to multi-generational trusts. The overall aim of Estate Planning is to provide an efficient means to care for dependant individuals ranging from minors to the disabled to the elderly as well as the passing of wealth from one generation to the next without the need of legal/court intervention or the costs associated with such proceedings. Powers of Attorney, Living Wills, Medical Powers of Attorney are some of the legal tools available which can be prepared by an attorney. The attorneys at Platt & Westby are experienced in Estate Planning and know the legal tools that will accomplish your Estate Planning goals.
Trusts as an alternative to Probate proceedings
Family Trusts are viable alternatives to probate proceedings which pass entire inheritances outright to survivors without regard to the survivor's capacity to handle the inheritance. Some people may want to protect their heirs from dissipation of their inheritance through youthful indiscretion, imposing outsiders and impulsive and/or compulsive behavior. Trusts can also be designed to preserve wealth and transmit it to third-generations. We recommend using the services of a knowledgeable trust attorney for drafting of trust provisions appropriate to your circumstances. Platt & Westby attorneys are knowledgeable and experience in drafting of Trust documents.
Trusts as an alternative to "Spend down" requirements
Congress was concerned about the use of Trusts and other estate planning tools to qualify applicants for Medicaid or ALTCS administered by AHCCCS in Arizona. In 1993, Congress passed an act that tightened the criteria governing the extent to which Trusts can shield income and resources. AHCCCS has the sole authority to "qualify" a trust as compliant with federal law. As a starting point, the presumption is that the Trust is available to pay for the applicant's care. For persons under the age of 65 and who otherwise meet the resource tests but whose income exceeds the thresholds "an income only special treatment Trust" (or a Miller Trust) is permissible. A special treatment trust can be established with the proceeds of a liability or insurance payment. Disbursements can be made for specific purposes that benefit the Medicaid/AHCCCS recipient, support the family within limits or otherwise are specifically approved by AHCCCS. However, AHCCCS must be a beneficiary of the Trust. There are changes to the trust requirements on a regular basis to meet perceived "loopholes" in Trust requirements, which make this area of law not readily susceptible to occasional practice.
Guardianships and Conservatorships
Guardianship is a grant of legal authority to make personal decisions for an incapacitated person. It is not a question of incompetence but a question of lack of capacity. A proposed Ward can fight the appointment of a Guardian and will be represented by a Court appointed attorney paid for by the proposed Guardian. For a Guardianship to be imposed there must be proof that the proposed Ward is impaired "to the extent that he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person." ARS 14-5101 (1). It is absolutely required to have a Physicians Report that the proposed Ward is incapacitated from being able to make responsible decisions regarding their own person. The Physician's written recommendation should be in hand before Petitioning for a Guardianship, although this is not a legal requirement.
A Conservatorship is a grant of legal authority over the protected person's property. A somewhat lesser standard is required than for a Guardianship. The required proof is that 1) the proposed protected person "is unable to manage the person's estate and affairs effectively" and 2) that the proposed protected person "has property which will be wasted or dissipated unless proper management is provided." Thus, a Conservatorship can be imposed when the proposed protected person is unable to prevent the waste of their assets even though they can take care of themselves physically. A situation in which a person is unable or unwilling to prevent other people or relatives from taking their assets, money or property but is otherwise able to live independently is a situation which may require a Conservatorship without a Guardianship, although most often the need is for both. Bonding will be required in the case of substantial assets in a Conservatorship.
Guardianships and Conservatorships are the most basic as well as the most powerful legal tools available for the protection and preservation of individuals who cannot protect or provide for themselves or preserve their assets upon which their standard of living depends. The experienced attorneys at Platt & Westby practice in the legal area of Guardianships and Conservatorships on a daily basis and have years of practical experience with which to guide our clients in their duties as Guardians and/or Conservators.
Elder Abuse Lawyers
Elder abuse may be physical, mental and financial. ARS 46-451 to 46-459 provide the laws for protection of adults vulnerable to abuse. This differs from incapacitated as is required in a Guardianship. A vulnerable adult may be able to make decisions but be unable to protect himself or herself from abuse, neglect or exploitation, while an incapacitated person cannot make informed decisions. The laws provide for both criminal and civil penalties, including complete loss of inheritance by the exploiter. The law is violated only if it is shown that a person in a position of trust and confidence either 1) failed to act for the benefit of the vulnerable adult to the same extent as a trustee or 2) by intimidation or deception knowingly took control, title, use or management of the vulnerable person's property intending to permanently deprive such vulnerable adult of the property. Take note and investigate if an elderly person talks about family members or caregivers taking to them about investments or making changes in their Wills or Estate Planning or have been taken to an attorney, accountant or bank and especially if it is not the elderly person's normal attorney, accountant or bank.
Financial abuse of the elderly by those in a position of trust can result in severe penalties for those who have betrayed their trust. No special title or position is required. It can be as little as helping an elderly person write checks and pay their bills. But when it results in the enrichment of the person in a position of trust through so called "gifts" by a dependent, elderly person, the law provides remedies. It may be paid care givers who are "given" a car so they never arrive late for work to care for an elderly person because of "car trouble." It may be the "caring" sibling providing for an elderly parent's needs who persuades their parent to "give" them some or all of the parent's estate because they are the only child who "cares" while at the same time keeping the other siblings at a distance and in the dark with regard to the exploitation of the parent. These are the ugliest of family battles to wrest the ill-gotten gains from the exploiter. The attorneys at Platt & Westby are experienced in these types of legal fights, know how to find the proof of the exploitation for the courtroom and will fight aggressively against the exploiters throughout the legal process to its conclusion.
Physical abuse and neglect
Be alert to physical injury such as bruises, burns, fractures, and belittling of a vulnerable adult and threats used to control the vulnerable adult such as threatening to place them in a nursing home. These are signs of possible physical and mental abuse by caregivers. Neglect of the elderly may be manifested by bed sores, withdrawal of activities, bad physical hygiene, weight loss, changes in alertness and depression. The case and claims against the wrongdoers does not end just because an elderly person dies, whether from the abuse or neglect or not. The attorneys at Platt & Westby can prosecute such a case for all the grief it causes the family of the abused or neglected person as well as the pain and suffering endured by the abused or neglected person.
Abuse Reporting requirements
Report Elder Abuse to Adult Protective Services at 1-877-767-2385. You may also report suspected elder abuse to local law enforcement agencies. Physicians, registered nurse practitioners, hospital interns or residents, surgeons, dentists, psychologists, social workers, peace officers or other persons who have responsibility for the care of an incapacitated or vulnerable adult that has a reasonable basis for believing abuse is occurring has a duty to immediately report such abuse, neglect or exploitation. A Guardian or Conservator has a duty to report abuse, neglect or exploitation to the Superior Court. An attorney, accountant, trustee, guardian or conservator or other person having responsibility for preparing the tax records of an incapacitated or vulnerable adult or other responsibility for the incapacitated or vulnerable adult who has a reasonable belief that the property of such person has been exploited or the person has been abused or neglected are required to report to a peace officer, a protective services worker or the public fiduciary of the County wherein the person resides.
If you have questions of whether abuse or neglect of any sort of an elderly or dependent person has occurred or whether you have evidence to support such a contention, the attorneys at Platt & Westby can advise you whether you have the evidence to support a case or can get the evidence and whether the time is ripe for reporting abuse to the appropriate government officer or entity. We at Platt & Westby are here to help. Contact our law office or call 623-239-4422 to schedule a consultation.