Legal Considerations


While you’re in the process of organizing long term care for your loved one, it’s a good idea to look into some legal considerations that are specific to seniors. Addressing these issues now will help reduce stress when critical life decisions need to be made and will ensure that a senior’s wishes are met.

Wills and Trusts

Wills – Enable a person to specify who gets his or her personal possessions when they die. They are useful in preventing potential family conflicts. In the absence of a will, the law will determine how personal property is distributed.

Trusts – A trust is a legal arrangement where one person (called the “trustee”) holds and manages property for the benefit of someone else (the “beneficiary”). The trust “property” can be cash, CDs, stocks, or real estate. The terms of the trust document control what the trustee may do with the trust property. It will set forth specific instructions for how the property can be invested as well as who can receive distributions from the trust and under what circumstances.

Some estate planners say it’s possible to use trusts to reduce your assets in order to qualify for Medicaid. Others say trusts can disqualify you for Medicaid. It’s important to seek the help of a good and experienced elder law attorney in the patient’s state when structuring your estate to meet specific goals.

Advance Health Care Directives

In the event that an individual is unable to make decisions due to illness or incapacity, Advance Health Care Directives are legal documents through which someone expresses their preferences for medical intervention and long-term care.

The 2 types of advance directives are:

Living Will – Provides instructions for the types of health care treatment that should be provided.

Durable Power of Attorney for Health Care – Appoints a person to make decisions on the individuals’ behalf when the individual is incapacitated.

Both forms of advance directives are advisable. To ensure they are followed, you should discuss them with everyone involved and give copies to responsible family members, a personal physician, and other trusted individuals. Advance Directives are recognized nationwide, but the detail in them may vary from state to state. Check with an experienced elder law attorney in your state.

Spouses do not have legal authority. Just because you are married does not mean you have legal authority over the property and person of your spouse. It’s important to give your spouse or someone you trust Power of Attorney. If your spouse becomes incapacitated and you don’t hold his or her power of attorney, you cannot sell the home you own jointly, cannot make withdrawals from your spouse’s IRA or other retirement plan, and cannot act for your spouse in any other legal capacity. If you don’t have a power of attorney, the only other alternative is a court appointed guardian.

Guardians and Conservators

If an individual becomes incapacitated without having completed a durable power of attorney to specify who he/she wants to act on his/her behalf, a court can appoint a guardian or conservator. Terminology varies from state to state and sometimes the terms are interchangeable. In Pennsylvania, the court procedure is termed a “guardianship”.

Guardian – An individual appointed to make health care, personal and financial decisions for someone in the event that person becomes physically or mentally incapacitated. A guardian would have the legal right to decide where the person will live and the medical treatment they would receive.

Conservator – Someone appointed to oversee the financial affairs of someone unable to do so themselves. The conservator takes control of the person’s assets and must handle them for the welfare of the protected person. Once a conservator is appointed, a dependent person may not liquidate his own assets or determine how the money will be invested without the consent of the conservator.

The court appoints a guardian/conservator after hearing evidence that a person is incapacitated and deciding that there is a need for a guardian. The law requires due process for the proposed ward. The proposed ward, or alleged incapacitated person, must be given formal legal notice of the proceeding, has a right to be present at the hearing, and has the right to be represented by a lawyer.

Court appointed guardianship can be very expensive and can take a considerable amount of time to get. Making a power of attorney is much less expensive and much less stressful than the court-appointed guardian process.


One thought on “Legal Considerations

  1. We’ve just read the Kingsmill Review which reviews the UK Care Sector. Couple of comments. No talk of medical oversight for home care patients. You don’t need Care Managers – you need RN Supervision of caregivers. Stop talking about Social Care – it’s not and it dilutes the real needs of patients as most do have medical conditionsZero hour contracts? No contracts – just allow caregivers to work for other providers as well. If you are a good employer they will prefer to work for you anyway. 15 minute cares slots? – No – 2 hour minimum shifts. If you want to see what mature homecare regulations look like, check out Delaware’s home care regulations on our website – they arguably the benchmark regulations for homecare in the USA

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