Elder Law Outline

I.WHO IS THE CLIENT?
1.Conflict of interest
a.       Hypo: Ms. Jones is elderly and in NH; she has Alzheimer’s and you cannot establish attorney – client relationship with her because she lacks capacity; before her lack of capacity she executed a POA and named her daughter as agent for financial matters and power to retain attorney on her behalf, so the agent comes to you. The agent would pay the attorney fees using Mrs. Jones’ money. The daughter comes to you saying that she hasn’t paid mother’s NH bills because she had financial problems and used it for her own debts.
 
a)      First, attorney has to go Mrs. Jones to make a determination for himself that she doesn’t have capacity
 
b)      Attorney talking to to daughter after daughter has used mom’s funds presents a conflict of interest because he may have to sue her as the mom’s attorney.
 
 
II. The Elderly / Aging
The elderly are those 65 and older, but 65 is less relevant in some ways
a.       We are aging better due to years of research and practice so life expectancy is going up
b.      As a result, dementia is going up because it affects the elderly in the higher age range.
c.       However, chronic care (Alzheimer etc) is less of a concern for doctors
§ There is less interest in and less money going into this area
§ Nevertheless, chronic disability among older Americans has sharply declined
§ Nobody is exactly sure why: may be cleaner drinking water unlike the 1900s, refrigeration etc.
2.   Home care for the elderly
d.      Chronic diseases make Activities of daily Living (ADL) harder so home care is required
e.       Insurance policies have limited coverage for home care
f.       Care comes from
i.        family and friends
ii.      Medicaid etc.
1)      There is the Home Care Benefit under Medicaid statute but congress wont extend the program
3.   Family support statutes /filial responsibility
g.      Two models
i.        An adult child with the financial means support a parent because of the existence of a relationship between them.
ii.      An adult child upon suit for support of a needy parent offer evidence that the parent failed in fulfilling the duties of parenthood
h.      30 states have some sort of filial responsibility
i.        Enforcement of the statute is infrequent – only 17 cases for enforcement clustered in 4 states.
 
 
III.Autonomy v. Protection: Counseling Older Clients
1.   Spousal Impoverishment
a.       Medicaid has a new way of budgeting to prevent spousal impoverishment
b.      Old rule:
i.        All joint money was available to pay for the first spouse that enters nursing home.
ii.      When that spouse dies the other spouse doesn’t have much to live with
iii.    Pension with survivor benefit and when that person dies the pension goes away – savings would be spent on nursing home
c.       New rule
i.        Keep more money for the ok/ at home spouse and the institutionalized spouse.
 
2.   Continuum of care
d.      When people need more help with health care, ADL etc, we start adding more services so they go to skilled nursing facilities:
(1)   Nursing Home
a.       A skilled nursing facility which provides skilled nursing around the clock
b.      Two categories of people in nursing homes
1)      Short term stays
1.      People who go for rehab in order to stay at home
2)      Long term
1.      People with chronic illness-things that are not going to get better
2.      People who cant safely remain at home
·         Those with memory issues
·         Congested heart failure etc that reduces their ability to do things for themselves.
c.       20-35% of the people in nursing homes didn’t need to be there (Community health Foundation in Western NY, survey of nursing homes.)
d.      People end up in nursing homes because:
 
1)      Overly protective system: Discharge planners at hospital and nursing homes prefer nursing home because everything is provided while home care plan takes longer and requires more work
2)      Cost:
1.      Medicaid will pay for nursing home care, while Medicaid for home care is a little more tricky
2.      Medicare:  nursing home care is not covered well, however for short term care Medicare covers 100 days in a nursing home after hospital care.
3.      Private Insurance: nursing home care is not covered well
 
(2)   Assisted Living facility
a.       Have minimum standards for skilled nursing
 
(3)   Senior Housing
a.       will provide different level of care like congregate dining which feeds you and gives the staff the opportunity to check up on you
b.       
(4)   Home Health Care
a.       has a commercial setting
b.      But 45% provided in non commercial (home care) setting
1)      In home care setting a person comes to your home to take care of you
2)      We are increasing services in home because most people prefer to be at home
 
(5)   Hospice
a.       Under Medicare to be a hospice patient the doctor has to give you normally 6 months or less to live
 
 
3.   Decisions for the Elderly
e.       Two tests are used
(1)Best Interest
a.       used in power of attorney financial decisions
 
1)      Power of Attorney
i.        Under New York Law, a statute that sets up relationship where there is a form that that you sign and name a person to be your agent
ii.      Agent can then do everything you want him or her to do within that scope of authority: financial stuff- apply for benefits, go to the bank etc.
iii.    The statute provides that the decision that the agent makes has the person’s best interest in mind.
 
2)      In the Matter of Ferraro (case example of best interest test highlighting difference in the two standards).
i.        Ferraro lives in Florida