Justia Legal Resources: Elder Law Center

Aging Americans deserve to enjoy comfortable and dignified lives. However, they may face certain risks or challenges involving their age and declining health. The Elder Law Center at Justia sheds more light on these issues.

Approximate Read Time: 5 Minutes

As their health declines, some elderly people may need care that is more comprehensive and sophisticated than what their family can provide. About 2.5 million Americans live in nursing homes or assisted living facilities. Their loved ones place great trust in these entities, but this trust is not always rewarded. Fortunately, the legal system provides some recourse when a facility or its staff fail to respect the rights of residents and uphold their duty to keep them safe.

During this month in 2006, a Texas jury awarded one of the largest verdicts in nursing home history. About a decade earlier, the 81-year-old Tranquilino Mendoza was living at the Comanche Trail Nursing Center in Big Spring when his roommate viciously assaulted him. Mendoza survived the incident but allegedly never recovered psychologically. His family argued that the nursing home knew that the attacker had a long history of violent incidents when they moved him from a locked ward to the room with Mendoza. The jury agreed, issuing a $160 million verdict. After applying statutory damages caps, the judge awarded over $10 million, which was affirmed on appeal.

While the Mendoza case was especially egregious, abuse and neglect happen all too often at nursing homes. The Elder Law Center in the Justia Legal Guides describes some red flags that family members of a nursing home resident should bear in mind when visiting their loved one. These include sudden weight loss, unexplained injuries, or a reluctance by staff to allow the resident to spend time on their own with their family, among other signs. The Elder Law Center also covers several other concerns that may affect older Americans and their families, helping them understand their legal rights and options.

Fighting Elder Abuse

When the family of an elderly person suspects that they may be suffering from abuse or neglect at a nursing home, they should first ensure their loved one’s safety. However, they may eventually consider bringing a lawsuit against the facility and any individual employees at fault. (Even if the facility did nothing wrong, it often may be held vicariously liable as the employer of an at-fault employee.) Most of these cases involve a theory of negligence, which requires showing that the defendant breached a duty of care owed to the elderly person. A violation of an applicable statute or regulation may bolster a plaintiff’s case, but this is not essential.

Not all abuse takes physical forms. Many older Americans, including those who live independently, face a risk of financial abuse like identity theft and credit card fraud. A scammer also may prey on an elderly person by building a friendly relationship with them before cajoling them into making the “friend” an heir or beneficiary in an estate planning instrument. A family member may want to take a closer look at large credit card charges or sudden withdrawals from a bank account, or a relationship that their older relative is developing with a stranger who has no particular reason to be close with them.

Some incidents of financial abuse involve an instrument called a power of attorney. This can allow someone to act on behalf of an elderly person in managing their finances. While a power of attorney can help an elderly person preserve their assets as their health declines, it creates a risk that the agent may abuse their power for their own gain. An elderly person should think carefully before naming an agent in a power of attorney. They also may want to limit its scope to the extent possible. If an elderly person or their loved one finds out that a power of attorney scam has occurred, they can pursue a claim to recover stolen money or property. These usually allege a breach of the fiduciary duty owed by the agent.

Long-Term Care Options

Elderly people with serious health conditions will need to carefully weigh their long-term care options, which range from long-term care facilities to assisted living and home care. Long-term care facilities may offer skilled nursing, intermediate care, or simply custodial care. The physical and mental condition of the elderly person will determine the type of facility that best meets their needs. For example, a person with a chronic rather than acute condition might benefit from a stay in an intermediate care facility.

If an elderly person does not need extensive or sophisticated assistance, they might prefer home care to maintain some independence. This allows them to receive services from a combination of providers, such as adult day cares and community organizations. If they choose to stay at home, they might consider modifying their home to improve its safety and accessibility. An intermediate option is assisted living, which preserves more independence than a nursing home while providing more monitoring than someone would receive while living at home. The staff at these facilities can assist with ordinary activities of daily living but do not provide the level of skilled medical care found at a nursing home.

Some Americans may consider purchasing long-term care insurance, but this may be expensive while covering only a limited range of costs. However, a policy that extends more broadly to cover some assisted living and home care expenses may be more worthwhile.

Concerns for Children of Seniors

As their faculties wane, older Americans may lean more heavily on their adult children. Areas in which a child might assist an elderly parent include choosing an appropriate long-term care option and devising a plan to pay for its costs. They also might help a parent with financial matters, such as becoming a joint holder of their bank account, helping them set up automatic payments for recurring expenses, or serving as their agent under a power of attorney. A child may want to support a parent in the estate planning process by helping them understand how instruments like wills and trusts work. If a parent has an incapacitating health condition, a child might consider pursuing a conservatorship or guardianship for them. A widowed parent may benefit not only from emotional comfort but also from assistance with matters like handling the estate of their deceased spouse. A child can provide advice and support in this area as well.

In narrow situations, filial responsibility laws may make an adult child liable to pay the expenses of a parent’s care. Filial responsibility laws apply only when a parent qualifies for neither Medicare nor Medicaid and lacks the ability to pay a bill for healthcare services, which is rare. Most elderly people who cannot pay for their care from their own funds will qualify for Medicaid. The government can recover reimbursement for Medicaid from the parent’s estate, but it cannot pursue a child for reimbursement.

Final Thoughts

Both elderly people and their children should understand the implications of increasing age and declining health. By putting a strong plan in place that accounts for financial, legal, and health concerns, they can better address any exigencies that may arise. If a specific legal question emerges, there is no substitute for consulting an elder law attorney who can offer guidance tailored to the situation. Meanwhile, the Elder Law Center provides a more general overview of some key issues in this area. Like the other Justia Legal Guides, it aims to make the law transparent and accessible to all.

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