Elder Law

Family Resources

Elder Law attorneys are advocates for the elderly and their loved ones.

Attorney Nancy Cogar specializes in providing legal counsel and strategies to advocate for the aging, strategize and offer options to protect the elderly’s quality of life and meet often complex and financially demanding health care needs.   We work with our clients to identify their personal legal needs and develop strategies to meet those needs both for those who are aging and/or living with special needs.  We also understand the important role of caregivers who are often family members working hard to protect their loved ones’ quality of life.    We understand the sensitive and emotionally demanding nature of some of these challenges and how difficult and decision-making can be when in the midst of a long term care crisis.  These challenges not only impact  the elder adults but the entire family.  Our legal practice offers help and advocacy to help you through these challenges, unexpected challenges  and prepare to meet future needs.

Our law offices specialize in a wide range of legal matters affecting aging and older  individuals and those with special needs including issues such as:

  • Estate planning
  • Estate Review and Supplemental Planning
  • Long-term care and crisis planning for health care issues
    • Strategies to managing Assisted Living and Nursing Home Care costs, including Medicaid (TennCare) planning and Supplemental Needs planning
    • Counsel and advocate with at-home and community based health care alternative resources
    • Aging at Home strategies and supports
    • Caregiver Agreements
    • Special Needs Planning
    • Medicaid Eligibility
  • Conservatorships
  • Probate Administration
  • Trust Administration

…..and other important and complex legal matters.

Comprehensive Life Care Planning

The Life Care Plan is a road map to planning your long-term care designed with your individual and family needs in mind.  It is a relationship with the Law Offices of Nancy Cogar throughout your life.  With our knowledge and expertise, we will guide you through a discussion about plans for the later stages of your life.  Your Life Care Plan allows you to achieve your long-term care and asset protection goals.  And, if changes occur along the way, our services are available to you to help you make the necessary adjustments.

Life Care Planning began as a concept within the field of litigation specifically to address changes associated with long-term care problems.

A Life Care Plan is a dynamic document based upon published standards, comprehensive assessment, data analysis and research which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.”     The International Academy of Life Care Planners

A life care plan is a comprehensive method to evaluate and manage your life utilizing all necessary services and resources.  For a successful Life Care Plan, we must have an understanding of your long-term health care goals and needs.  Our practice must be knowledgeable about community resources and eligibility for these resources.  Additionally, we must be able to identify and develop alternatives for care consistent with patient/family needs.  A Life Care Plan represents the integration of these issues to meet your individual needs and goals.

Your Life Care Plan is customized to fit your needs and enables you to anticipate future long-term care needs and the associated costs.  If unexpected changes occur, we stay with you every step of the way to help you help you adapt .

Your Life Care Plan, therefore, incorporates elements of Elder Law, Care Assessment and Coordination of Services.

Long-Term Care and Crisis Planning

Studies show that one in three people over 65 will need nursing care.  Neither private health insurance, Medicare, nor your Medicare supplement will pay for long-term “custodial care” or help with mobility when it is the only type of care you need.

Long-term care insurance (LTC) plans can pay for skilled, intermediate or custodial care including “homemaker services” (cooking, cleaning, shopping, laundry, etc.) whenever the care setting is appropriate.  LTC plans reimburse custodial care expenses incurred in your own home, someone else’s home, assisted living facilities, adult day care or nursing homes.  In addition, some plans will pay non-licensed individuals – even adult children in some cases – to help with home care for a parent or loved one.  Pollicies that pay only for care in a facility or only for home care are available.

Most LTC insurers require a health review.  Each company has different medical underwriting criteria.  They can choose to offer coverage, or not, depending on the applicant’s health history.  Applicants with health challenges could consider applying to two companies, particularly when an upcoming birthday could increase the cost of coverage.  When health is an issue, submitting an application is the only way to verify insurability.

The risk not having long-care and its potential financial impact must be considered for complete financial and estate planning.  LTC plans that pay for care at home are an excellent way to help the senior stay in their home.  By integrating individually designed LTC insurance into estate and financial plans, and without breaking the bank, you take a large step toward achieving your loved one’s financial and personal goals

At-Home Support Services/Caregiving

Whether you are caring for your loved one in the home, scrambling to make arrangements for nursing home care or trying to make sure nothing goes wrong in the nursing home, you know how difficult, time-consuming and isolating caregiving can be.

Imagine what life would be like if you had a team of advisors helping you get the right care, preserve family resources and make difficult decisions.

That’s what life is like when you have a Life Care Plan.

A Life Care Plan helps you respond to every challenge created by the long-term illness or disability of your elderly loved one before, during, and after the onset of declining health. Customized for your elderly loved one’s situation, a Life Care Plan bundles the right combination of estate planning, asset protection, legal services, public benefits qualfication, care coordination, family education, nursing home advocacy and crisis intervention services into a convenient package.

It’s the ultimate in peace of mind for families who want the best for their elderly loved ones without overwhelming family members with the demands of care.

Don’t shoulder the burdens alone. Ask about our Life Care Planning services – the best source for all the help elders and their families need.

Assisted Living

Maintaining independence is important for people as they age.  In fact, losing it is one of the biggest fears seniors have.  An overwhelming majority of seniors surveyed want to remain in their houses.  But the reality is tha 1 in 5 U.S. adults age 85+ say they either need or currently receive help with activities of daily living (ADLs).  Assisted living is one way to get that kind of help and still remain as independent as possible.

Assisted living communities give older adults personalized care in a residential setting.  A good candidate for assisted living is a senior whose health or well-being requires a higher level of support (which is determined by a health assessment by the community according to state regulations).  Residents are assessed when they move in so they can get an individualized service plan so the provider can customize the service plan to meet the personal needs of each resident.

Many isolated seniors benefit from the social engagement and opportunities to remain active and engaged with a community of other seniors.  The most common assisted living services offered include medication management, assistance using the bathroom, dressing and grooming.  Housekeeping, meals laundry and transportation services, as well as, social programs and activities are typically included.  Staff is available 24/7 to help with safety, care and support.  Residents are encouraged to bring furniture and personal items to make their new residence feel like home.

Assisted living is not the same as skilled nursing or nursing home care.  In a skilled nursing facility, resident receive full-time care by a specially trained medical staff.  How do you know if it may be time to consider a move to assisted living?  Think back over the last year and see if you can recall any of these issues which can be criteria for assisted living:

  • Experienced at least one fall – with or without injury
  • Meal preparation is becoming more difficult
  • You’ve notice signs of hunger or that nutritional needs aren’t being meet
  • It’s getting harder to maneuver around the house
  • More help is needed getting dressed, bathing, managing medication or with other activities of daily living
  • You often feel isolated and afraid

 

Medicare

Americans are living longer.  A 65-year old retiree can expect to live another 20 years.  Male  life expectancy is about 81 years and female life expectancy is about 85 years.  However, as we age we experience an increase in our personal healthcare spending.  Nearly all American over 65 have Medicare as their primary source of health insurance coverage.  However, Medicare covers mostly acute care services and requires seniors to pay part of the cost, leaving about half of health spending of seniors to be covered by other sources, such as Medigap, etc.  Consequently, medical debt for seniors is now and will continue to be a major problem.

Unfortunately, seniors are in a vulnerable position when they seek medical services.  The products they seek are essential and often life saving.  Purchases are often sudden and unplanned which may bring large financial burdens.  Seniors can experience high levels of medical debt even on Medicare.

 

Medicaid Planning – Nursing Homes

Like millions of caregivers, you may be facing challenging decisions dealing with changes as your loved one ages.  The aging process  can be complex and confusing particularly when dealing with government agencies, such as, Medicaid and Medicare.

Medicaid is a government program, funded by both state and federal dollars, which provides long term care to impoverished seniors.  Medicaid is one of the five methods of paying for long term care.  To qualify for Medicaid you must meet three levels of eligibility: technical, medical and financial.

  • Technical – To be technically eligible, a person must be a U.S. Citizen, must be a resident of the state in which the Medicaid application is being filed and must be 65 years of age or older
  • Medical – To be medically eligible, a person must be medically needy
  • Financial – To be financially eligible, a person must meet both an income test and a resource assets test.

In Tennessee, there are three categories of Medicaid:  TennCare Medicaid, TennCare Standard and CHOICES.

Transfering Assets – The Deficit Reduction Act of 2005 (DRA) places new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care.  This may make it more difficult to qualify for Medicaid benefits.

This law extended Medicaid’s “lookback” period for all asset transfers from three to five years.  Additionally, the start of the penalty period for transferred assets changes from the date of the transfer to the date when  the individual making the transfer enters a nursing home and would otherwise be eligible for Medicaid coverage.

In other words, the penalty period does not begin until the nursing home resident is out of fund i.e. cannot pay the nursing home.  Consequently, any transfer should be made carefully with an understanding of the law and consequences.

Anyone considering a transfer of  assets should consult with an Elder Law Attorney to be sure you understand the particular laws governing Tennessee , how your eligibility for Medicaid might be affected and the consequences of unlawful transfers.

 

Conservatorships

A conservatorship or adult guardianship is the legal process by which someone is appointed by a Court to make financial and medical decisioins for you if you are incapacitated or disabled.  In Tennessee, the person appointed by the Court is called a Conservator.  The incapacitated or diabled person for whom a conservator is appointed is called the Ward.

Conservator of the Person – A “Conservator of the Person” is appointed by a Court to make healthcare and personal care decisions for the Ward.  Examples of decisions made by the conservator of the person include:  housing arrangements, nutrition, food and meal preparation, medical, dental, vision care, personal hygiene, personal care and protection.

Conservator of the Estate – A “Conservator of the Estate or Property” is appointed by a Court to make financial decisions for the Ward.  The conservator of the property takes possession of the Ward’s assets and income and is responsible for protecting, investing and spending the assets and income solely for the benefit of the Ward.  Examples of decisions made by the conservator of the property include:  investment decisions, payment of bills, invoice and debts, the sale of property, budgeting for expenses and safekeeping of property.

Usually the same person is appointed as both conservator of the person and of the estate.  There are situations in which the Court chooses to appoint separate persons.  Someone desiring to become the conservator of a disabled person must file a Petition with the Court requesting to be appointed as conservator.  After the Petition is filed, a Court hearing is scheduled to determine whether or not the disabled person needs the legal protection of a conservatorship.  Notice of the Petition and hearing must be given to all closest relatives of the disabled person.

A Medical Report completed by a medical doctor or physician who has examined the disabled person must be filed with the Court prior to the hearing.  The purpose of the report is to inform the Court of the Court of the medical condition of the proposed Ward.

A Guardian Ad Litem is appointed by the Court to investigate the medical condition, financial assets and income of the proposed Ward.  They will also investigate the qualifications of the person petitioning to be Conservator.  Prior to the hearing, the Guardian Ad Litem files a written report with the Court recommending whether or not the proposed Ward needs a conservator and whether or not the person petitioning to be the conservator is qualified.

How Can I Avoid A Conservatorship?

You can avoid a court administered conservatorship by planning for your future disability now while you are not disabled.  A Power of Attorney is one method of planning for future disability.  A power of attorney is a written legal document which appoints a family member or friend to make decisions for you if you are disabled or incapacitated and cannon make the decisions for yourself.

If you or some you know needs a Conservator or if the health, safety and welfare of a family member is is immediate jeopardy, the Court may appoint an Emergency Conservator without notice if substantial harm is imminent.

To learn more about Conservatorship and Power of Attorney, contact us by phone (423) 269-7460 or  at info@tnelderlawyers.com

Paying for Care

The national average rate for assisted living is $3,628 per month according to Genworth 2016 Cost of Care Survey.  No matter what your sociio-economic status, make sure you are taking advantage of all means available that can help pay for assisted living.

Most families pay for assisted living out of their own pockets using a combination of Social Security, pensions, Veterans benefits, home equity and saving.  Here are some ways to pay for assisted living, including some options that most people know about and others that are less welll-known:

Long-Term Care Insurance – Long-term care insurance is a policy that is purchased through a private insurance company.  Similar to health insurance policies, the price varies greatly depending on factors such as a person’s health, age, and amount of coverage.  Coverage could be denied for people with pre-existing conditions such as Alzheimer’s disease, multiple sclerosis, a stroke, or Parkinson’s disease.  However, insurers vary widely in their criteria.  If one company denies an applicant, another company might accept that person.

Medicare – Medicare does not pay for the cost of living, room and board, or personal care in an assisted living facility.  Medicare might pay for short-term stays in an ALF or rehabilitation center while some recovers from an illness, injury, or surgery.  Assistance from Medicare is very limited.

Medicaid – Medicaid is a joint federal government program for older people with low incomes and limited assets.  The administration of the program falls to the individual states, therefore, each state sets its own guidelines regarding eligibility and services.  The  number of state Medicaid programs paying for assisted living is increasing and many states also offer home and community-based services to help delay an elder’s placement in a long-term care facility.

Aid and Attendance Veterans Benefit – The Veterans Administration’s Aid and Attendance is part of an “improved pension” benefit that is largely unknown.  Living in an Assisted Living facility qualifies.  Aid and Attendance is an enhancement to a veteran’s regular VA pension.  As of 2017, an eligible veteran may receive up to $1,794 monthly, a surviving spouse is eligible for up to $1,153 monthly, and a veteran with a spouse is eligible for up to $2,127 monthly.

Their are other options to pay for assisted living that are riskier because they are financial transactions rather than government money.  The following should only be considered only after other options have been exhausted:   investment-based options, life settlements, reverse mortgage, annuities tor bridge loans.

The Law Offices of Nancy Cogar can help you navigate viable options to pay for care based on your current assets and healthcare needs.

Elder Abuse and Neglect

Elder abuse includes physical, emotional, or sexual harm inflicted upon an older adult, their financial exploitation, or neglect of their welfare by people who are directly responsible for their care.  In the U.S. alone, more than half a million reports of elder abuse reach authorities every year, and millions more cases go unreported.

As older adults become more physically frail, they’re less able to take care of themselves, stand up to bullying, or fight back if attached.  Mental or physical ailments can make them more trying companions for those who live with them.  And they may not see or hear as well or think as clearly as they used to, leaving openings for unscrupulous people to take advantage of them.

Elder abuse tends to take place where the senior lives; where their abusers are often adult children, other family members such as grandchildren, or a spouse or partner.  Elder abuse can also occur in institutional settings, especially long-term care facilities.

If you suspect that an elderly person is a risk from a neglectful or overwhelmed caregiver, or being preyed upon financially, it is importand to speak up.  Everyone deserves to live in safety, with dignity and respect.

If you think someone is in urgent danger, call 911 or your local police to get help right away.  The Administration for Community Living has a National Center on Elder Abuse where you can learn about how to report abuse, where to get help, and State laws that deal with abuse and neglect. For more information, call the Eldercare Locator weekdays at 1-800-677-1116 or go to:  htpps://ncea.acl.gov

 

End of Life Care and Resources

End-of-life care is the term used to describe the support and medical care given during the time surrounding death.  Such care does not happen only in the moments before breathing ceases and the heart stops beating.  Older people often live with one or more chronic illnesses and need a lot of care for days, weeks, and even months before death.

When a doctor says something like, “I’m afraid the news is not good.  There are no other treatments for us to try.  I’m sorry.” it may close the door to the possibility of a cure, but it does not end the need for medical support.  Nor does it end the involvement of family and friends.  There are many ways to provide care for an older person who is dying.  Such care often involves a team.  Being a caregiver for someone at the end of life can be physically and emotionally exhausting.  In the end, accept that there may be no perfect death, just the best you can do for the one you love.  And, the pain of losing someone close to you may be softened a little because, when you were needed, you did what you could.

Complete end-of-life care also includes helping the dying person manage mental and emotional distress.   Someone who is alert might understandably feel depressed, anxious and have specific fears and concerns.  Encouraging conversations and the simple act of physical contact can make a person feel connected to those he or she loves.

People nearing the end of life may have spiritual needs as important as their physical, mental and emotional concerns.  Many people find solace in their faith and peach by resolving unsettled issues with friends and family.

Here are some additional resources for Comfort Care:

American Music Therapy Association

CaringBridge

Hospice and Palliative Nurses Association

National Alliance for Caregiving

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