Elder law (Massachusetts)
Encyclopedia
Elder law denotes the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, regulations, and prevailing good legal practices applicable to a range of issues affecting individuals aged 65 and over.
The subject matter of elder law arises from careful legal analysis of the concerns of elders and their caregivers as to planning for foreseeable circumstances (e.g., property or capacity) and dealing with harmful situations (e.g., abuse
Abuse
Abuse is the improper usage or treatment for a bad purpose, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, sexual assault, violation, rape, unjust practices; wrongful practice or custom; offense; crime, or otherwise...

 or neglect
Neglect
Neglect is a passive form of abuse in which a perpetrator is responsible to provide care for a victim who is unable to care for himself or herself, but fails to provide adequate care....

).

Elders in Massachusetts

See generally Elder law (U.S.), Elders in the United States

The concerns of elders and the concerns of their caregivers typically coincide—quality of life, quality of care, wellbeing of the primary caregiver (ordinarily a spouse or family member), and wellbeing of loved ones, including pets.

Elders often find it unavoidable to address these problems: (a) to maximize financing for expensive long-term care versus leaving an inheritance for loved ones; and (b) to wisely select fiduciaries to act on their behalf in case of physical or mental incapacity. Such problems present significant emotional, financial, and legal challenges.

Elder Law in Massachusetts

Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

 elder law draws on both federal and State law for its legal content. The Massachusetts Medicaid program has been renamed MassHealth. Other distinctive features include
  • the absence of legislation recognizing living wills substituting reliance upon health care proxies
    Health care proxy
    A Health Care Proxy is an instrument that allows a patient to appoint an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions. Once the document is drafted, the primary individual continues to be allowed to make health care decisions...

     instead
  • a well-developed mental health law
  • a well-developed case law of trusts based on a traditional "prudent man" standard for investments rather than a list of fixed classes of statutory investment vehicles as required elsewhere.


The Massachusetts law of trusts serves as the paradigm, although certain changes have been made in states which have adopted the Uniform Probate Code
Uniform Probate Code
The Uniform Probate Code is a uniform act drafted by National Conference of Commissioners on Uniform State Laws governing inheritance and the decedents' estates in the United States...

 (which Massachusetts has not as of 2006). The famous Rogers decision requiring court-appointed monitors for ordered antipsychotic medications by the Massachusetts Supreme Judicial Court
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...

 was subsequently approved and followed by the United States Supreme Court. Massachusetts is the only state whose judges are permanently appointed as in the federal courts, which has resulted in a bench largely free of political pressure and of greater longevity and experience than in any other state.

Elder Law Attorneys

Attorneys who specialize in assisting elders and their caregivers to appraise and execute their options in such matters are generally known as elder law attorneys.

See generally Elder law (U.S.), Elder Law Attorneys

See generally Elder law (U.S.), Assessing Professional Competence
  • The Massachusetts chapter is the largest and most active State NAELA chapter in the country. Its members meet monthly except during the Summer for continuing legal education and discussions of current legal issues of concern in Massachusetts.

Health and long-term care

See also Health law
Health law
Health Law is the federal, state, and local law, rules, regulations and other jurisprudence affecting the health care industry and their application to health care patients, providers and payors, and vendors to the health care industry, including without limitation the relationships among...



Declining health, mobility, and mental capacity are important yet often unpredictable facts of life for many elders.

Experience teaches that the maintaining of caregiver wellbeing through respite and support programs is one of the best and least expensive ways to maintain the wellbeing of a dependent elder.

Adequate health insurance after reaching the age of 65 is available at reasonable rates under the Medicare
Medicare (United States)
Medicare is a social insurance program administered by the United States government, providing health insurance coverage to people who are aged 65 and over; to those who are under 65 and are permanently physically disabled or who have a congenital physical disability; or to those who meet other...

 program to everyone who qualifies for Social Security benefits. Coverage was increased in 2006, but many elders nonetheless choose to carry supplemental health insurance to fill in the gaps (hence the name Medigap
Medigap
Medigap refers to various private supplemental health insurance plans sold to Medicare beneficiaries in the United States that provide coverage for medical expenses not or only partially covered by Medicare...

 insurance). However, Medicare excludes coverage for skilled nursing facilities except up to 100 days arising from hospitalization after 90 days away from hospital or nursing home. Funding for long-term care may come from the patient, long-term care insurance, or Medicaid benefits when the patient qualifies. In 1998, a randomly selected 65-year-old was said to have a 45% chance of requiring long-term care, the average length of stay being 6 years. [cite?] Obviously, in some circumstances, such as chronic illness or family susceptibility, a future need for long-term care becomes a probability verging to a certainty.

A top concern for most elders is continuing to live at home for as long as possible. It is widely believed more would remain at home if health aides and visiting nurses were covered as an intermediate step towards full skilled nursing. Medicaid
Medicaid
Medicaid is the United States health program for certain people and families with low incomes and resources. It is a means-tested program that is jointly funded by the state and federal governments, and is managed by the states. People served by Medicaid are U.S. citizens or legal permanent...

is often described as possessing an "institutional bias" in favor of nursing homes over in-home care. Recent public and private studies suggest substantial cost savings could accrue from a revision of Medicaid policy. [cite?] Costs drive change, so new options should be watched for.

Nursing home choices depend primarily on the medical needs. Some need intermediate care facilities and others need skilled nursing facilities (SNF's). Medicaid ordinarily covers SNF's only.

An alternative placement of particular interest to couples only one of whom requires long-term care is the continuing care community, also known under several cognate names. The couple may start in an apartment, one enter the SNF, the other a smaller apartment, and so on. Although they tend to be expensive, they have worked very well for some.
Assistance with LTC facility selection may be provided by a gerontologist or visiting nurse, often a case manager for an elder law attorney. Changing from one facility to another after admission is not impossible but poses difficulties that may be avoided at least for a time.
In some locales, legal assistance may be advisable for nursing home admission agreement negotiations. Many protections for the elder can be agreed upon.

Medicaid Planning (MassHealth)

  • Eligibility


Applicants must demonstrate both a health need and a financial need for MassHealth (Medicaid). Health need may be shown by a resident in a skilled nursing facility simply by submitting a certificate from the facility, whereas in other cases documentary proof may be required. Financial need must be shown by submitting a form financial statement with supporting documentation that demonstrates full compliance with MassHealth regulations, an exercise comparable to preparing, filing, and prosecuting a bankruptcy petition or an offer in compromise with the IRS.
In general, financial eligibility depends on a showing of countable assets less than a certain threshold ($2,000 in 2006). There are income requirements as well. Some assets are always countable, such as cash. Other assets are countable only at certain times, such as the marital home, not countable while occupied by the applicant's spouse or disabled child, countable otherwise. MassHealth may record a lien on the home for security. Probate estates are subject to claim for repayment to MassHealth, and probate requires notice to MassHealth.
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