Elder law is the field addressing legal issues faced by senior citizens. To some degree, Elder Law overlaps and complements estate planning, and a good estate plan should include provisions relating to Elder Law issues.
A guardianship designates an individual as “guardian” of another to address some incapacity arising out of age or health issues. The incapacitated person is known as the “protected person.” A guardian has the power and responsibility to make decisions concerning where the protected person will live, and concerning medical care of the protected person. In addition, a guardian may be given the power to restrict visitation with the protected person by certain others. In order to get a guardianship, the petitioner must prove that the proposed protected person is incapacitated that is, that he or she lacks the capability to receive and evaluate information to such a degree that he or she is unable to meet the essential requirements for health and safety. If the protected person has very limited assets and income, the guardian may assume control of them (but if the assets and income are more substantial, a “conservator” should be appointed, who may or may not be the same person as the guardian).
Guardianship of an adult is an intrusive process, and generally should be considered only when it will achieve clearly defined goals that can’t be achieved through any other means. It strips an adult American of some of his or her basic human rights, and before guardianship will be ordered, the court must be shown that it is needed to avoid substantial harm to the protected person or to others.
Good planning, through the use of Powers of Attorney and an Advance Directive, or through the creation of a Revocable Living Trust, together with an Advance Directive, will in most cases avoid the need to ever consider a guardianship.
A “conservator” is a court appointed fiduciary who manages the financial affairs of another. A conservator may be appointed when a person is “financially incapable,” meaning he or she is unable to manage financial resources, including real property. Conservatorship can almost always be avoided by good planning, either by creating a Revocable Living Trust or by appointing an agent under a Power of Attorney.
Medicaid and the Cost of LongTerm Care
About half of all elders will face a need for residential longterm care during some part of their lives. Even for elders who are able to remain at home, there may be a need for assistance with cooking and housekeeping, or with medical care. Such care, whether at home or in a facility, is expensive.
The average cost of residential care in Oregon now exceeds $6,000 per month. At that rate (and with medical and prescription costs on top), many elders “outlive their money,” consuming all their financial resources before they pass away. Also, the spouse of a person who needs residential care may face penury, and not have any resources left for their own care, should they need it.
The rules for qualifying for public assistance with the cost of longterm care have changed greatly in the past few years, reducing the usefulness of strategies that used to make it possible to transfer assets to the next generation and still qualify for Medicaid. Now more than ever, it is crucial to carefully plan for the cost of longterm care, and to seek professional assistance well in advance of applying for state assistance with such costs.