Kansas Bar Association

Aging and the Law

Foreword

Today one of every four persons has a concern which will require the professional assistance of a lawyer. For many this need for a lawyer becomes accentuated later in life. While the lawyer's role in serving older persons has traditionally been most visible as that of a counselor in estate planning matters, lawyers perform a variety of other services vital to older adults and their relatives. These services include: representation in matters involving pensions and retirement benefits; age discrimination in employment; Social Security; nursing home care; guardianships; conservatorships; Advanced Directives, Medicare, Medicaid and matters involving private health insurance. Here are some of the questions most frequently asked Kansas lawyers by senior citizens.

If I have a dispute with the Social Security Administration, what are my appeal rights? When can my lawyer represent me?

You have a right to appeal any decision about your claim or payment amount. Your first step is to request a "reconsideration" by the Social Security Office. After reconsideration there are other steps which include a hearing before an administrative law judge, review by the Appeals Council, and in some cases, a civil action in a federal court. You may be represented by your lawyer at any stage of the appeal process.

My husband and I just want to leave everything to our two children. Do we really need a will? Won't the state just divide up our estate like that anyway?

The result under Kansas law will depend upon many factors including how the property is titled, who your heirs are, what names are on property and the status of Kansas law at the time of your deaths. Estate planning may benefit your estate by protecting some of your heirs or by providing savings in estate or inheritance taxes. If your children are minors, you may want to nominate whomever you would prefer to be guardian and conservator of the children and their inheritance. If there are stepchildren or this is a second marriage, special provisions may have to be made in your will. With a will you can insure that your property will be distributed according to your wishes and be assured that you have provided for the foreseeable contingencies.

I have a condition which is going to require surgery. If something goes wrong, I do not want to be kept alive by a machine. Are there arrangements that I can make that will make it possible for me to die naturally if complications arise?

Yes. You may make a written declaration stating that you do not wish to have your life artificially prolonged in the event of terminal illness or incurable injury. This declaration is sometimes called a "Living Will" and it must be prepared and signed in a certain manner to be valid. For more information on living wills, refer to the KBA's pamphlet, "Living Wills and the Durable Power of Attorney for Health Care Decisions."

I understand that it is against the law to fire or to refuse to hire someone just because they are too old. Is this correct?

Under the Kansas Age Discrimination in Employment Act, it is an unlawful employment practice for a person who employs four or more workers to deprive any person of employment or to fire an employee on the basis of that person's age. There is also a federal law which protects against age discrimination in employment.

My mother seems to be failing in her ability to keep track of her financial affairs even though she is still strong and takes care of herself otherwise. What should I do?

You may wish to explore a guardianship which allows an individual (the guardian) to exercise control over someone's personal affairs or a conservatorship which allows another individual or bank to manage a person's financial and business affairs. As an effective alternative, persons simply needing help with their financial affairs may be best served by a variety of legal tools such as a durable power of attorney or a living trust.

I'm confused about Medicare and Medicaid-which is which?

Both are government programs which pay medical bills. Medicare is national health insurance for the aged and disabled. Medicaid is a program which applies to only those who may qualify for assistance. The majority of nursing home residents receive assistance from the Medicaid program in payment of nursing home bills.

What should we know about choosing a nursing home for a parent? Are there legal consequences we should consider?

Yes, the law regulates and licenses nursing homes. Important questions should be asked. Does the home have a current license from the state? Does the administrator have a current license from the state? If you need and are eligible for financial assistance, is the home certified to participate in government programs (such as Medicaid) or other programs that provide it? If the answer to these three questions is "no" do not use the home. Most homes display their licenses and certificates. Ask to see them and take time to examine them. Homes are licensed according to the kinds of services offered. An intermediate care facility is for people who need some nursing supervision in addition to help with daily living activities. A skilled nursing home is staffed to make 24-hour nursing services available to residents ill enough to require them. An intermediate personal care home is for individuals, who by reason of aging, illness, disease, or physical or mental infirmities are unable to care for themselves but require only simple nursing care. Your doctor can make suggestions on the appropriate level of care. Knowing that a home meets federal as well as state standards for care helps you to choose a nursing home. Many nursing homes are not Medicare or Medicaid certified. Ask the administrator if residents are covered for one or both government programs. Whether you pay your own bills or benefit from Medicare or Medicaid, find out the cost per day and compare services provided and costs of care with other similar homes.

My husband and I are getting up in years and would like to add our child's name to the title on our house. A friend says that may not be wise.
Why?

There are many potential problems with this arrangement, and frequently it does not achieve the desired result. There may be gift tax implications. Depending on the value of the property and unless the child can prove his or her actual contribution to the property, the property may still remain subject to estate and inheritance tax. If the property is sold, it will require the signatures of the child and his or her spouse to transfer title. If the child becomes involved in litigation or a divorce action, or has tax problems, the property may be subject to a lien, attachment or transfers.

I have heard about a durable power of attorney.
What is it?

In a power of attorney, you, the principal, authorize another person to act on your behalf as your agent. Kansas law allows you to grant powers of attorney so long as you are not under any legal disability. A durable power of attorney will continue in effect even after you become disabled or incapacitated. Similarly, a durable power of attorney can be written to take effect only upon the disability of the principal. A carefully designed durable power of attorney is good protection for many older persons. Kansas law also allows a durable power of attorney for health care.

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