The only difference in Elder Law from other areas of practice is that there is only one type of client "The Elderly".

  Our main focus is on Senior?s suffering from either a Disability or Alzheimer?s Disease. We provide services to others but primarily to Senior Citizens in the areas of;

            Asset Protection

            Guardianship

            Estate Planning and Long term Insurance Issues

            Trusts Wills and Estates

            Assisted Living and Quality of Care Issues and 

            Medicade and Medicare Issues and Litgation
           

   Asset Protection

   When we talk about protection of assets we generally are speaking about protecting senior?s assets from needlessly being confiscated by Medicaid or Medicare. For example, when talking about Medicaid, the home of a senior no matter its value is not counted as an asset of the Medicaid applicant so long as it is there principal place of residence. An apartment building or income producing property is excluded from this exemption. Even if the applicant is in a nursing home all they have to show is some intent to return to their home even if they never do.

   Other items not counted as assets are; a vehicle (although there is a limitation allowed on its value), pre-paid burial or funeral plans, cash value of life insurance policies if they do not exceed a certain amount and are irrevocable, and certain sums of cash. Keep in mind, that if there is a joint bank account, it is not treated as half an asset; the account is treated as one hundred percent of an asset. And the other person on the account is forbidden by law to withdraw the money out to put it in there name.

   When talking about Medicare. Keep in mind that Medicare has a superior claim on any awards resulting from a workmen?s compensation claim or a personal injury awarded to a Medicare recipient. This means simply that Medicare will get paid first before any creditors of a personal injury award or workmen's compensation award and the basis will be  projected future medical payments to be made to the Medicare recipient.

   However all is not as bad as it may seem. We can help soften the asset blow with the creation of various trusts instruments, such as income trusts or special needs trusts or others.

   Guardianship

   Guardianship involves the appointment by a court of a legaly responsible individual or agency on behalf of a person who is not able to independently manage his or her affairs due to a mental disability. Under Illinois law, anyone attaining the age of 18 is considered an adult and is presumed to be capable of handling the normal rights and responsibilities associated with adult status. Guardianship should be considered only in situations were there exist no advance directives such as a previously executed durable power of attorney for property or health care.

What are the alternatives?

·        Durable Powers of Attorney for Health Care or Property

·        Living Will: for end of life decisions only

·        Health Care Surrogate Act: a prescribed hierarchy of decision makers designated by the health care facility to provide substitutive decisions on medical, surgical and non-mental health treatment issues.

·        Mental Health Treatment Preference Declaration Act: a power of attorney specifically designed to provide substitutive decision making in mental health treatment issues. 

Who may be a guardian?

   Any individual who is 18 years of age or older, is mentally sound and has not been convicted of a felony. Family members typically assume the role, but a friend or not-for-profit agency may be appointed.  

   If no one is available to be a guardian, there are several agencies that can be guardian of person and/or estate. If the disabled person has assets of less than $25,000, the Office of State Guardian is the appropriate public agency (telephone 708.338.4500). If the estate is over $25,000, the Office of the Cook County Public Guardian is the appropriate agency in Cook County to assume guardianship (312.603.0800). If the State is to be appointed, a social agency or hospital must have an attorney or petitioning agent available to file the petition.

What are the responsibilities?

   A guardian has the same responsibilities that a parent has in relation to his/her minor children but is not financially responsible for the person. Nor is the guardian required to provide residential care in his/her home. The ?Guardian of the Person? makes all personal decisions to ensure that basic needs are met; food, clothing. shelter, and medical care. Nursing home placement decisions can also be made if allowed by the court. The? Guardian of the estate? may be the same individual or non-profit agency, or a bank, and ensures that all financial affairs are managed properly; an annual financial accounting must be filed with the court

What is the process?

1.  An interested party must file a petition in the probate court of the county in which the disabled person lives.

2.  A physician?s report must be prepared by a physician who is familiar with the person?s diagnosis. It must be based on an examination performed within 90 days of the date the petition is filed.

3.  When the petition is filed with the court, a hearing date is assigned within approximately 30 days.

4.  During the30 days, a summons is served on the person informing of court action and rights, and a notice is delivered or mailed to immediate family members or next of kin informing them of the pending action.

5.  An attorney called a guardian ad Litem may also be assigned by the court to visit the person and report back to the Court an independent opinion as to the need for guardianship,

6.  A court hearing is held and a judge determines if the person is indeed disabled; if deemed disabled, the judge appoints the guardian(s) of estate, person or both.

7.  The guardian(s) receive letters of office which document the guardian?s authority to act

   Estate Planning

   Careful planning whether in advance or in response to an unanticipated event can protect your estate, for you or your spouse or your children. This can be done by either making sure you receive the benefits you are entitled to under Medicaid and Medicare or purchasing the correct long term insurance policy. Why do this? You do this because most people will end up having to pay for nursing home care out of their pockets until they spend down there assets to qualify for Medicaid. The advantage of doing this is that one is likely to gain access to a better quality facility. The disadvantage is that it?s expensive. But again careful planning can soften or even eliminate the blow. 

   Trusts and Wills

   A Trust is a legal document in which the trustee holds legal title to property for the benefit of another person (called the Beneficiary).The Trustee must follow the rules set forth in the Trust Instrument. Medicare and Medicaid have strict rules and guidelines concerning trusts.

   A Will, is a legal document directing who will receive your property at your death. It designates a legal representative to carry out your wishes. If you died without a will, your estate would pass according to laws of your state. This may or may not be what you want. All types of property do not necessarily pass through a will. For example; life insurance proceeds, 401 (k) plans, jointly owned property and property in trust pass outside of a will or probate.

   Many people prevent probate issues by creating what?s called a pour-over will or Trust.

   Quality of Care and Assisted Living Issues

   Illinois has adopted an affordable Assisted Living Model which mirrors Assisted Living in the private sector. Illinois is encouraging Supported Living for Medicaid recipients as an alternative to nursing home care. The aim of the program is to preserve privacy, dignity and autonomy while emphasizing health and wellness. The program combines apartment-style living with personal care, homemaking, medication supervision social services allowing residents to take part in independent decision making and personal choice while preserving their dignity.

   For those who can pay privately, The American Bar Association has published guidelines or a checklist to review when evaluating an Assisted Living Facility. ?The American Bar Association Legal Guide for Older Americans by Charles P. Sabatino, et al., Times Books, Copyright 1998 by the American Bar Association.

   Litigation

We act as adversaries for our clients in various tribunals representing and championing their interests.