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Family Law Newsletter

• Disability Planning
• The Nursing Home Decision: Finding a Nursing Home and Handling the Cost
• Requirements for Foster Parents
• Hiring an Elder Law Attorney
• An Overview of School Discipline

Disability Planning

An elder individual should consider disability planning when planning their estate. There are numerous tools that are available to the elder individual with respect to disability planning. Some of the available tools include:

• Supplemental Security Income (SSI)
• Medical Power of Attorney or Healthcare Proxy
• Financial Power of Attorney
• Durable Power of Attorney
• Long-Term Care Insurance

SSI

SSI is a federal program that provides elderly individuals with a guaranteed minimum monthly income. Eligibility for SSI is based on financial need alone. SSI benefits have nothing to do with the duration of time the elder individual worked or how much money that he or she contributed into the social security system.

The majority of states supplement SSI benefits with other state benefits.

Medical Power of Attorney or Healthcare Proxy

A medical power of attorney or healthcare proxy is an important document for an elder individual to have in their arsenal for his or her disability planning. The medical power of attorney or healthcare proxy gives another individual the right and permission to make medical decisions on behalf of the elder individual if the elder individual is unable to make medical decisions. This is an important document if the elder individual has specific wishes with respect to her care and the continuation of her life if she is in a disabled state.

Financial and Durable Power of Attorneys

The financial power of attorney is an important document for the elder individual to have with respect to disability planning. If the elder individual becomes disabled, the financial power of attorney gives an individual who was selected by the elder individual the power and authority to make decisions regarding the elder individual's financial affairs. The durable power of attorney provides the selected individual with power to make decisions. Generally the decisions affect the elder individual's overall welfare. The durable power of attorney may be very specific or may be general in nature.

Long-Term Care Insurance

Many elder individuals purchase long-term care insurance as a part of their overall disability plan. Long-term care insurance may assist with specific expenses that result from a disability that the elder individual may suffer. Long-term care insurance may be very costly and does not cover 100% of the costs incurred.

The Nursing Home Decision: Finding a Nursing Home and Handling the Cost

A nursing home is a facility that becomes a new home for an elderly person. The facility offers food, skilled nursing care, rehabilitation, medical services, personal services and recreational activities. Many times the nursing home facility will have a beauty or barbershop, a store and laundry facilities as well. The decision to place the elder person in a nursing home facility can be very taxing on family members. The decision is even more difficult if the elder is reluctant to residing in a nursing home facility.

Finding a Nursing Home

If it is decided by the elder person or the family of the elder that the elder should be placed in a nursing home, investigation and information gathering should be the first step. It is important to gather information on the nursing home facilities. Factors that may be considered include:

• The condition of the facility.
• Knowledge of the tenants and staff of the facility.
• Distance the facility is located with respect to family members.
• Cost of the facility.
• The elder person's opinion on the facility and on living in a nursing home.
• Certification of the facility. If the facility is not certified, Medicaid will not contribute to any of the cost associated with the elder's stay at the nursing home.

Cost

Nursing homes can be very expensive. The average cost of a stay in a nursing home for a year is $50,000. The cost varies depending upon the state, location of the facility and newness of the facility. The elder person may have the finances to pay for her stay in the nursing home facility. However, because of the great cost associated with nursing homes, elders cannot typically afford to pay for the entire stay, especially if long in duration.

Some elders have long-term care insurance. This is insurance that the elder purchased at a younger age to assist in offsetting the costs of long term care, including residing in a nursing home.

Medicare, the federal health insurance program or Medicaid, the federal and state health insurance program for lower income individuals are also usually used to pay for the cost of a nursing home stay. Medicaid cannot be used until the elder person has exhausted the majority of their savings and assets. Although the elder's spouse is permitted to keep some assets, income and the family home. Every state has different requirements for Medicaid eligibility.

Foster Parents

Requirements for Foster Parents

A foster parent is not required to own his or her own home in order to participate in the foster care program. The requirements for foster parenting differ from state to state. However, generally some of the requirements include:

• Parent must be 21 years of age or older
• Parent must obtain a license
• Parent must have space for a foster child
• Character references
• Criminal background check
• Safe home for the foster child
• Financially stable household
• Family assessment

Each state has pre-service and training requirements as well. These requirements vary greatly from state to state.

Once foster parents have been selected the child or children are delivered to their home. A caseworker is appointed to oversee the placement and to observe how the placement is going. Periodic visits and reporting may be part of the caseworker's job.

Rights of a Foster Parent

The foster parent has several rights including, but not limited to:

• Being treated with respect.
• Receiving support services that will assist the foster child in his or her adjustment.
• Being informed of all information concerning the foster child and his or her history.
• Receiving financial assistance for the basic needs of the foster child.
• Being informed of all information involving their role as a foster parent.
• Being assured confidentiality in issues relating to their family.
• Participation regarding the permanency of placement for the foster child.

Although foster parenting may eventually lead to adoption of the foster child, the goal of foster parenting is to provide a temporary and safe environment for the child. In some instances the foster child is unable to be returned to their home environment for whatever reason and the foster parent seeks to adopt the child. The foster parent is required to go through the same process for adopting the foster child even though the foster child may have lived with the foster parent for a number of months or even years.

Hiring an Elder Law Attorney

With an aging population in the United States, elder law is becoming a recognized and specialized area of law. An elder law attorney focuses his or her practice on issues that effect the elderly population.

Types of issues typically handled by an elder attorney include:

• Medicare issues
• Medicaid issues
• Social security denials
• Estate planning
• Abuse and neglect issues
• Nursing home or long-term care issues

Selection of an Elder Law Attorney

Selection of an elder law attorney may be difficult and time-consuming. The elder or the family of the elder needs to make sure to find an attorney who appears to be competent in the area of elder law. The elder may ask friends or family for recommendations. The elder may also consult the yellow pages or contact the state bar association for recommendations. The elder should ask the attorney several different questions prior to retaining his or her services. The types of questions that should be asked depend upon the issue in each particular case. General questions that may be asked include:

• How long have you practiced in the area of elder law?
• Have you ever had any other clients that had the same issue or issues?
• Will I be required to pay a retainer fee?
• Will I only be working with you or one of your associate attorneys?
• How long do you think that it will take to complete the task or resolve the issue?

Cost

As with hiring any attorney, cost is an issue that should be discussed in the initial meeting with the attorney prior to hiring him or her. The elder should ask what the hourly rate is, whether they will be charged a sum certain for the services rendered, whether there is a retainer fee, and whether they will be billed on a monthly basis.

An Overview of School Discipline

School discipline is an issue that may arise with respect to a student's improper activities while attending a public school. Typically, if the student commits an improper act, the situation is handled in an administrative manner without formal judicial review of the student's conduct. However, if the student's conduct was grossly improper or harmed the lives of others, judicial intervention may be necessary and required.

Students, teachers and administrators all have a legitimate interest in the assurance that the school and related areas are free from unwanted disturbances. Every student who attends public school has the right to obtain a public education. The right to obtain an education should not be denied to any student absent extreme circumstances or for good cause.

If, for example, the student is unable to get along with his or her teacher and the student continually misbehaves, the student may be able to be moved to another classroom to resolve any issues that may have arisen with the student's original teacher. In the aforementioned example, the student will not likely have to seek the advice of an attorney or involve the judicial system.

Even if the student committed an improper act as alleged by school administrators, the punishment sought to be imposed by the administration may not be proper. For example, if the student broke a window and the school administration sought to expel the student, the punishment rendered may have been too severe. The student may challenge the punishment imposed by way of administrative means, i.e. requesting an informal and then formal hearing in front of the school board or an administrative board. If administrative means fail, the student may wish to file a lawsuit seeking injunctive relief that would preclude the school from expelling the student as a result of his actions.

Challenging the School's Conduct

If the student violated a school rule, it is required that the school show that the rule was understandable and that the school had the power to enforce the rule or regulate the type of conduct that the rule sought to enforce. Furthermore, the school is also required to show that the discipline imposed was fair. The punishment imposed or sought to be imposed must be not unduly harsh or severe. The punishment imposed must fit the offense committed.