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by Joy Loverde

Under federal law, all nursing homes must have a written description of the rights of the residents. A copy of the Bill of Rights must be made available to any resident and family member who requests it.

Nursing Home Resident’s Bill of Rights

• be informed of your rights
• be informed, in writing, of the nursing home’s policies
• be informed of the nursing home’s services and charges
• be informed of charges not covered by Medicare or Medicaid
• be informed about your medical condition unless restricted by doctor’s written orders
• participate in the planning of your care, including refusal of treatment
• choose your own physician
• manage your personal finances, or authorize someone else to manage them for you
• privacy, dignity, and respect
• wear your own clothing
• use your own possessions while not infringing upon the rights and safety of others
• be free from mental and physical abuse
• be free from chemical and physical restraints unless authorized in writing by a physician
• voice opinions and grievances without fear of coercion and retaliation from others
• be discharged or transferred only for medical reasons
• appeal a discharge or transfer
• be accessible to visitors or to refuse visitors
• immediate access by family members
• receive visitors during at least eight hours of a given day
• privacy and confidentiality for meetings or conversations with visitors
• receive assistance from an advocate in asserting their rights and benefits

Many senior citizens face debilitating health conditions such as dementia, arthritis, stroke, or immobility. These beloved elders are often the victim of fraud, inappropriate government intervention, financial ruin, inadequate medical care, and nursing home abuse or neglect. They often fail to mention any of these personal problems to family members, as they do not want to cause unnecessary worry or seem incapable of handling their own affairs.

Sometimes, even when caring family members make heroic and tireless efforts to help their loved ones, loopholes in the law make the resolution of many situations next to impossible. Thankfully, with a little advice from a competent attorney, supportive family members can close these loopholes, reaching a satisfactory resolution to most of these issues. For those instances where family members cannot fight these battles alone, a trusted attorney who specializes in elder law can be the hero of the day.

If your elder is placed in a hospital or nursing home without adequate insurance or savings to pay for their care, their assets can liquidated by the court. As a caring family member, you must take immediate steps to secure these assets from liquidation. Recent changes in the law have created new requirements for the payment of elder medical care, including rapid seizure of physical property. This includes financial assets, home furnishings, and all other possessions – including life insurance policies and joint bank accounts held with healthy spouses.

While your family member may allow you to handle their affairs while they are physically healthy, they might change their minds if they become ill, are hospitalized, or enter a nursing home. If you do not have a legally binding, signed and notarized agreement between the two of you granting guardianship or Power of Attorney, you may find yourself unable to help them during critical decisions.

Without these documents, bank accounts cannot be accessed, mortgages or other property payments cannot be made, the finer details of various personal matters or accounts cannot be discussed, and end-of-life decisions cannot be made. Instead, these important matters will be decided by a government-appointed elder liaison, who acts on the behalf of everyone other than your loved one. Therefore, it is imperative to make these arrangements well in advance. Ensure that you know your rights and the rights of your loved one by speaking with an experienced, professional elder law attorney.

Elder care law is of great importance for those who are already institutionalized. Nursing homes are often operated on an extremely tight budget, with less than adequate staffing levels or inexperienced nurse’s aides. In fact, in many states only one certified nurse could be present in an entire facility. In some cases the majority of nursing home care is conducted by people who were hired straight off the street, without any prior elder care experience whatsoever.

When elder care abuse or neglect is discovered, nursing homes quickly jump to their defense, making logical excuses for bruises, bed sores, or psychological trauma. In some cases, documentation of care or treatment schedules are doctored in order to appear legitimate and within the letter of the law. Add to this fact that nursing homes are required to provide, on average, only 45 minutes of care per day per patient, and it quickly becomes obvious that legal help is not only desirable, but necessary.

If you or someone you know are facing an elder care issue or have questions about elder law, contact a competent attorney right away. Remember, in many cases timing is of the essence. Neglecting to take critical steps could make all the difference. After all, you’ll want to shield your elder from harm rather than relinquishing all rights and responsibilities to an uncaring government.

About the Author

If you are in the Chicago or Morris Illinois areas be sure to contact Fitzpatrick & Harrop, experienced Grundy County personal injury lawyers and LaSalle County personal injury attorneys for the best possible representation when you are injured.

A Medicaid advisor will guide you through Medicaid approved methods of protecting your parent’s estate and prevent you from making mistakes that would delay your parent becoming eligible for benefits.  An elder law attorney can help your parent establish legal tools that convert “countable” assets (assets that Medicaid considers when determining eligibility) to “exempt” assets.

Ideally long term care planning starts well before your parent becomes ill or needs help with basic living skills.  A well prepared retirement and estate plan includes how your parent will pay for care. In reality, most of us wait until long term care is upon us before we consider how we will pay for it.

Find an elder law attorney who specializes in Medicaid planning:

• If your parent currently lives in a nursing home, you can ask the social worker for a referral to an attorney.
• If you or your parent has a financial advisor or estate planning attorney, they may have referrals for you.
• You can also check with your local senior center to ask for a referral.
• If you don’t have personal referral that you are confident about, the National Association of Elder Law Attorneys (NAELA) is a good place to start your search for an attorney.  Through their website, you can find an attorney in your local area.

After you narrow your search down to two attorneys, schedule a consultation.  Come to the meeting with a list of your questions and any special circumstances that you feel will impact your parent’s situation.  Your parent should attend the meeting unless health concerns make it impossible.

At the consultation:

• Ask for references you can call to help you determine if the attorney is experienced and successful.
• Get a complete schedule of fees and services that the attorney offers.
• Do you feel that the attorney is approachable and answered your questions completely

Did you use an elder law attorney for Medicaid planning?  Share your experiences with us.

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–Janice Wallace

The answer is because, like it or not, you need one. And not just any legal professional will do if you are caring for an elderly parent. You need an elder law attorney.

What, exactly you may ask, is an Elder Law Attorney? Why do I need one? With a booming population that is aging, it’s becoming harder than ever to cope with and navigate the legal system to get the help, advice and representation you may need for your loved one. An elder law attorney specializes in the issues that surround aging including retaining independence, quality of life and financial security.

Elder law attorneys specialize in a wide variety of areas that will help you weave through the legal maze of caring for a loved one, including:

• Advanced Medical Directives (aka “living wills”): a document that clearly states your elderly parents wishes not to receive (or to receive) medical if he can’t speak for himself.
• Estate Administration: Tangible property, including litigation of issues between family members and with the government and/or IRS.
• Trusts: A trust allows you to pass assets to beneficiaries upon death. There are two types:
  • Living Trusts: Avoids probate and the involvement of the courts.
  • Special Needs Trusts: Protect inheritances and settlements that may otherwise threaten your entitlement to Medicaid or Social Security in a legally sound environment.
• Power of Attorney: Identifies a person to make medical or financial decisions if your loved one is incapacitated.
• Guardianship: the appointment of a person who acts in the stead your loved one if he or she becomes unable to make decisions on their own.
• Benefit Planning: Covers all the fun stuff… Medicare, Medicaid, Social Security, Veterans benefits, disability, retirement funds, 401ks, IRAs, CDs, pensions and more.
• Insurance / Investment Advice: Helps you evaluate options and provides third-party advice on best practices for elder care.
• Business Succession / Tax Planning
• Care Management and Elder Care Counseling
• Senior care abuse
• Emergency needs regarding your senior care charge

So now you know why you need one. Here’s how to find him or her. Search the Internet for an “elder law” attorney in your city or area. Ask a friend or the local Administration on Aging office. Finally, when contacting attorneys for interviews, be sure to ask the following questions:

• Is “elder care” (or elder law) the attorney’s primary focus?
• How many years of experience does the attorney have with elder law?
• Does the attorney have any special certifications, or has she/he attended recent courses on the issues surrounding elder law?
• Is there a charge for initial consultation? What are the attorney’s rates?

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–Kim Thies