The latest expert featured in our Ask the Expert series is Brandon Fields, an elder law attorney from Boulder, Colorado. This week Brandon answers our readers’ top elder law questions, from what to look for in an assisted living contract to the intricacies of legal guardianship.
We live in a society built on laws, and law is inexorably linked to growing old. Whether we’re determining the best Medicare supplemental plan for ourselves, or trying to obtain guardianship of a parent with dementia, laws are a core consideration. But law is complex. Except for those in the legal profession, most of us would never study law unless our circumstances required it. Just thinking about the mountainous library of rules, regulations and codes that make up our legal system may be enough to trigger a migraine. Fortunately there are experts whose job it is to help: elder law attorneys.
No one reads law for fun. Law is inherently dull and obfuscated, which is why a whole industry is built on helping the layperson navigate its complexities. Legal issues become especially important as we age. Nearly every issue significant to seniors and their loved ones involves the law. From Medicaid eligibility to end-of-life issues, legal considerations cannot be avoided when we’re addressing the needs of an older loved one. If we’re fortunate, we may be able to work our way through this legal labyrinth independently, but sometimes we hit dead-ends and need expert help – a lawyer. But not just any attorney can help with issues involving the elderly. Just as there are doctors who specialize in geriatrics, there are lawyers who specialize in elder law.
Elder law attorneys can help with issues involving:
Q: I am the legal guardian for a loved one. The care facility continually tries to list me as the guarantor. I have been told there is a difference between guarantor and guardian, and that I should not be held accountable for my loved one’s bills as he does have his own income and accounts as an adult who has worked all his life. The facility refuses to change the records. What should I do?
Brandon Fields:A legal guardian is appointed by a court to make decisions for another person, generally referred to as the ward or protected person. In some states the guardianship is divided into a guardian of the person and guardian of the property, or the person in charge of health care may be referred to as guardian and the person in charge of property may be referred to as the conservator. Regardless of the nomenclature used, the person appointed by the court as guardian or conservator is not responsible for the debts of the ward or protected person, absent some type of misconduct or fraud on their part regarding the handling of the assets of the protected person or ward. However, such liability can be created by signing a contract, such as a facility admissions contract, where you specifically agree to be responsible for the bills in the event the ward or protected person does not pay, a so-called “responsible party” or “guarantor.” The federal Nursing Home Reform Law prohibits a facility that accepts Medicaid or Medicare from requiring another person to guarantee payment for the resident as a condition of admissions. However, they may need the person handling the finances to sign to agree to make the payments, and so any signature should say “as guardian for X, and not individually” or “as agent under power of attorney, but not individually.” Courts have held that where a person “voluntarily” signs such an agreement in their own name, but it is not required as a condition of admission, they can be held liable for payment, so you must be careful what you sign and how you sign.
This is a general discussion of issues, but does not constitute legal advice. If you want legal advice on your contract, you can engage an elder law attorney to review and comment on the specific proposed agreement.
See our Ask the Expert elder law page for more questions and answers Brandon. He addresses what to look for in an assisted living contract, the tax implications of claiming a parent as a dependent, and the intricacies of guardianship. Brandon will tackle more questions in the coming weeks, so check back periodically.
Do you have questions or your own advice for our readers? We welcome your comments below.