Lawyers Help Seniors Plan for Future

By Stella Davis, The Current-Argus

February 24, 2010

Anita Letter, staff attorney for the State Bar of New Mexico Lawyer Referral for the Elderly.

In a rapidly changing world, there are many issues facing senior citizens today that only a few years ago were unheard of. Seniors need to be aware of their legal rights and the resources that ensure those rights are enforced, attorneys from the Lawyer Referral for the Elderly Program told a group of seniors Thursday.

Funded by the State Bar of New Mexico, the New Mexico Aging and Long Term Services Department, and the New Mexico Civil Legal Services Commission, attorneys for the referral program offer free workshops for seniors in communities across the state.

The organization also answers questions relating to senior legal issues and assists them in locating an attorney in their area who has the expertise to deal with their specific problem. Some attorneys will take a case free of charge.

J. Gayolyn Johnson and Anita Letter, staff attorneys for the program, said they have heard plenty of horror stories about senior citizens losing their homes, hard-earned money and dignity because they thought they were doing the right thing or trusted someone close to them to act in their best interest.

Johnson and Letter covered a variety of issues that included power of attorney for continued financial planning and health care, probate and Medicare and Medicaid as it pertains to going into long-term or short-term nursing facilities.

Addressing the issue of giving someone power of attorney for financial matters, Johnson told those in attendance that the person they choose to hold their power of attorney in the event they become too ill to handle their financial affairs should be someone they trust implicitly.

She said the person they choose should be someone who will act in their interest instead of their own interest, and who will try to make the same decision they would have made for themselves. The power of attorney can be given to a relative, a friend or a hired bank or corporation.

Johnson advised that should someone try to force them to sign a power of attorney, be it relatives or family friends, to resist signing it and call an attorney or the referral program for assistance.

She explained that a power of attorney can be for a specific period of time, or it can be indefinite until revoked. Upon death of the person who signed the power of attorney, it becomes null and void.

Letter said that Medicare and Medicaid are two different programs, yet they work in tandem with each other when a person is institutionalized in a nursing home.

Johnson explained that Medicare is an insurance paid through Social Security and only covers short-term skilled care in a nursing home. Medicaid, on the other hand, is a government benefit for people who can't pay for custodial care. But with that benefit comes an income and assets tests. That's when some get themselves into a bind in transferring their assets to a family member in order to qualify for Medicaid payments for long-term care.

Johnson said New Mexico's law has changed. Instead of looking back just three years at transferring of assets, the state now look backs five years prior to an individual going into a nursing home and applying for Medicaid.

She said there is a penalty for giving away assets within the last five years. The institutionalized patient is disqualified from receiving Medicaid assistance for a time equal to the value of assets transferred.

Putting someone's name on an account or deed is also considered a transfer. However, there is no penalty for transfer of money and property between spouses.

"The alternative is to spend down your assets on yourself," she said. "You worked hard for the money you saved, so why not enjoy it?"

Johnson said attorneys for the Lawyer Referral Program have seen numerous cases where a widowed parent put a grown child's name on the deed to the house and as a joint co-owner of checking accounts and other financial documents. In many cases, the outcome was disastrous.

Letter added, "We have had cases where the IRS came after the grown child for non-payment of taxes. Since the child's name was on the checking and savings account, the IRS cleaned it out to settle the tax debt, leaving the aging parent penniless."

"Anything that you have that is titled, you need to keep it in your name only," Johnson advised.

At the conclusion of the workshop, those in attendance were given the opportunity to seek a free, private consultation with Letter and Johnson.

Ed Chavez, who came from Artesia for the workshop, said it was worth the drive to Carlsbad.

"I got plenty out of it," he said. "It gave me an idea of what I need to do. I'm not quite there yet — to go into a nursing home or anything like that. But I can put things in place for the time when I can't take care of myself."

Arlie and Jean Hennessee said the workshop was "informative.

"We have already done a lot of what was discussed today. What we heard has given us the peace of mind that we have done the right things. But we still need to know and do lot more. It's hard to know what to do anymore. The laws keep changing," Arlie Hennessee said.

Jean Hennessee added: "You never know when your mental capacity will start to fade. I think it is important to get everything in order and in place while you still have your mental capacity."  

More Information on US Elder Rights Issues

Copyright © Global Action on Aging
Terms of Use  |  Privacy Policy  |  Contact Us