Frequently Asked Questions:
A Resource Guide
Our Frequently Asked Questions are an, easy way to get general information about legal topics we hear often from our clients at Somekh & Associates. We developed this quick list of F.A.Q.s as a resource for you. If you need more information and clarity about a specific matter and would like to schedule a meeting at our offices or a virtual consultation click here.
Please select a topic below:
Medicaid Planning
Guardianship
Nursing Homes
Advance Directives
More Resources and Useful Links
Medicaid Planning
What is Medicaid planning?
You may recognize the name “Medicaid” as the original government health care provider for the poor. In practice, it has turned into the nation’s “insurance” plan for long-term nursing care for elderly in the middle class. As a result, Medicaid planning helps those who need nursing home care. It’s a strategy we help many clients with so the government actually pays for that care. Without a Medicaid strategy in place, the cost of nursing home care can leave a family financially destitute.
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Is Medicaid planning legal and ethical?
Yes. Medicaid planning isn’t about hiding assets from the government. In fact it’s often the only option left to seniors facing economic disaster. This happens when there is too little money to pay privately for nursing home care. But, there is too much money to qualify for Medicaid. Seeking advice from a qualified Medicaid planner is like seeking the advice of an accountant at the end of the year to prepare your income taxes. Medicaid planning falls within all applicable state and federal laws.
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Do I have to give away or “spend down” all of my assets before I qualify for Medicaid?
No, not under the current laws. The Medicaid program does have stringent rules. However, the program isn’t intended to impoverish middle class seniors who receive benefits. In fact, the program was designed to prevent seniors from becoming financially impoverished due to the high cost of nursing home care.
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I don’t have to give away my home and assets to qualify?
No. Keep your home. You can keep some of your assets. You can also give away some of your assets to family members or other loved ones. Many people sell their homes to come up with the cash for nursing home care when it’s not necessary. Before making any decisions, be smart. Consult with a qualified Medicaid planning attorney. At Somekh & Associates we’ll be happy to meet with you and answer your questions so you can find out if Medicaid planning is right for you. A 30-minute consultation could result in saving thousands of dollars.
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Is it too late to do Medicaid Planning if someone is already in a nursing home?
No. Medicaid Planning can be done even after someone has already entered a nursing home.
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Guardianship
What is Guardianship?
A Guardianship is a legal relationship between a competent adult or Guardian and a person or “Ward’’ who is no longer able to make responsible decisions for him or herself.
Reasons for appointing a Guardian may include Alzheimer’s disease, mental disability or stroke, for example. A Guardian is court-appointed and can be authorized to make legal, financial, and health care decisions for the Ward. The Guardian must regularly report to the court, and can be removed if he or she does not adequately care for the Ward. A Guardian may be a relative, a friend or an attorney. In some cases Guardianship can be appointed to a state organization or agency.
In the State of New York, Guardianship proceedings are governed by Article 81 of the Mental Hygiene Law. The primary focus of this law is to protect the individual needs of incapacitated persons.
- The intent of enacting Article 81 was to afford people the least restrictive means of protection. The court:
- Has the authority to tailor a Guardianship based on the individual’s needs and circumstances
- Determines if a person has functional limitations
- Determines whether he or she understands the nature and consequences of those limitations
- Determines whether or not it’s likely that a person will suffer harm if a Guardian is not appointed
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What does the Guardian do?
A Guardian makes decisions for the incapacitated person or “Ward.” These decisions can include:
- Choices regarding personal needs
- Paying bills for the Ward
- Manage the Ward’s property
- Decide where they live and
- Make medical decisions.
- Whom the Ward associates with and
- How the Ward can spend his or her money.
For these reasons, it is important that a Guardian be a trustworthy person who always considers the best interests of the Ward.
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What is limited Guardianship?
Limited Guardianship may be a better option in some cases because it restricts the power of a Guardian. A limited Guardianship allows the Ward to retain some legal rights and freedoms. This may make sense if the Ward can still make some of his or her own decisions. For example, a person may be capable of living on his or her own and can still manage money. But he or she may not be able to make his or her own medical decisions due to a mental illness.
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What’s the difference between a Conservator and a Guardian?
The court appoints a Conservator only to manage a person’s finances. A Conservator does not make personal decisions about where a person lives or whom they associates with. Conservatorship is granted for some of the same reasons as a Guardianship. For example, some people may be able to handle a small amount of money on a daily basis, but they can’t manage their own money on a larger scale.
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Nursing Homes
Do nursing home patients have rights?
Yes. Residents in a nursing facility that participates in Medicare have the right to be free from verbal, sexual, physical and mental abuse. They also have the right to be free of physical or chemical restraints imposed to “discipline” a resident. Restraints cannot be used solely for convenience. Restraints can be used with a doctor’s written orders when the purpose is to treat a medical condition.
The doctor must specify the duration and circumstances under which restraints can be used. This is only permitted to insure the safety of the resident or other residents.
Residents in a nursing facility are entitled to receiving verbal and written notice of the rights and services to which he/she is entitled during his/her stay in the nursing home facility.
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What specific rights are guaranteed nursing home patients by law?
The list of rights is long. A few include:
- Keeping and using their personal possessions and clothing unless this would endanger their health and safety.
- Seeing family members, ombudspersons or other resident advocates, physicians, service providers, and representatives of state and federal government.
- Applying for and receiving Medicare and Medicaid benefits. They cannot be asked to leave a home because they receive such benefits.
- Keeping their clinical and personal records confidential.
- Choosing their own personal physician.
- Nursing homes must treat all individuals the same, regardless of whether they are private payers or Medicaid recipients.
- Most laws protecting nursing home residents are about being treated with respect and dignity.
- Other laws protecting nursing home residents are to make sure patients aren’t abused or neglected.
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Can a nursing home hold a patient against his or her wishes?
Residents have the right not to be held against their will – if they have not been deemed incapacitated by a court of law.
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How can a person be held against his or her will if he or she does not have dementia?
An elderly person can find himself or herself being placed involuntarily in a home even if there is no dementia -- just because of age or other events.
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How can seniors protect themselves from this happening?
The patient or a family member should contact an Elder Law attorney at once. An Elder Law attorney can:
- Visit him or her
- Determine whether he/she has the capacity to make decisions
- Assist him/her in signing out of the facility against medical advice
- Assist him/her in getting transportation back home
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Does this always work?
Not always. Fearing liability issues, sometimes the nursing home will actually physically stop a patient from leaving a facility. Some will go as far as calling the police. In such cases, a court order may be necessary.
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Can the nursing home fight the court order?
If a nursing home fights a court order they may begin Guardianship proceedings. This was the issue of the patient’s competency can be determined by the court. The decisions regarding a nursing home resident’s competency are up to the court, not the nursing home.
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Advance Directives
What is an advance directive?
An Advance Directive is a legal document signed by a competent person giving specific direction to health care providers about treatment choices for a patient in certain circumstances.
- A Durable Power of Attorney for health care allows you to name a "patient advocate" to act for you and carry out your wishes.
- A Living Will allows you to state your wishes in writing, but does not name a patient advocate.
- The best alternative is often to put in place both documents. Or, a single, combined "Advance Directive" can be used. It names a proxy and provides guidance so one's wishes are carried out. The best strategy will depend on the laws in your state.
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Why have an advance directive?
Many people have strong feelings about the kind of medical care they want to receive or refuse under certain circumstances. An Advance Directive allows you to clearly state your feelings about your health care if you should become unable to do so yourself. It ensures that a trusted family member or a friend is empowered to make sure your wishes are respected and carried out.
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What factors should I when an Advanced Directive is written?
- Who would you like to make treatment decisions for you, if you become unable to so?
- How do you feel about ventilators, surgery, resuscitation (CPR), drugs or tube feeding if you were to become terminally ill? If you were unconscious and not likely to wake up? If you were senile?
- What kind of medical treatment would you want if you had a severe stroke or other medical condition that made you dependant on others for all your care?
- What sort of mental, physical, or social abilities are important for you to enjoy living?
- Do you want to receive every treatment your caregivers recommend?
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