In the United States, people over 50 years of age make up a rapidly growing demographic
Elder law is all about ensuring the rights, financial well being and care for those who are 50+ years old. It’s critical to learn more so that you can plan ahead in advance!
Have you ever heard the term “Elder Law”?
It’s a complex area of law that focuses on issues like asset preservation and planning for those individuals who are 50 years old or older. You should be prepared with an attorney if your family member needs long-term care, because this stuff isn’t easy! The attorneys at Brown Law PLLC have been working in this field since 2004 – so they know what they’re doing (and how).
A key question in any legal matter relating to elders is whether there exists representation rights when dealing directly with our aging parents as opposed to placing them under guardianship while still continuing responsibility over daily living tasks such granting emancipating powers without unnecessary interference
Elder law attorneys can help you in many legal areas, including:
- Trusts & Wills
- Medicaid Planning & Applications
- Asset Protection
- Probate & Administration
- Estate Planning
- Estate & Guardianship Litigation
- Powers of Attorney & Advance Directives
- Tax Planning
In addition to the protections enjoyed by all Texans, state law provides special rights and protections for elderly individuals, including anyone 60 and over. Section 102.003 of the Texas Human Resources Code explains these rights.
Right to be Free to Exercise Civil Rights Under the Law
The elderly have the same civil rights as other adults under U.S. and Texas laws, except where lawfully restricted. They also have the right to use those civil rights free of interference, coercion, discrimination, and reprisal.
Right to Dignity and Respect
An elderly person has the right to be treated with dignity and respect, without regard to race, religion, nationality, sex, age, disability, marital status, or source of payment. This means that the elderly person has the right to:
- Make his or her own choices about personal affairs, care, benefits, and services, and
- Be free from abuse, neglect, and exploitation.
Right to Designate a Guardian or Representative
If protection for an elderly person is required, he or she has the right to designate a guardian or representative to ensure quality care over his or her affairs.
Right to be Free from Physical and Mental Abuse
The elderly have the right to be free of both physical and mental abuse. Physical abuse includes corporal punishment, as well as physical or chemical restraints used to “discipline” a person, or used for the convenience of a person providing services. Restraints are only permitted in very specific circumstances, such as when authorized by a doctor, in case of emergency, or in certain circumstances when the court-appointed guardian of a person with an intellectual disability has given informed consent.
Right to Communicate and Complain Regarding Treatment, Care or Services
An elderly person may not be prohibited from communicating in his or her native language with others or employees for the purpose of acquiring or providing any type of treatment, care, or services.
In addition, he or she may complain about care or treatment, both anonymously or through a designated person. The service provider shall promptly respond to resolve the complaint and may not discriminate or punish the elderly person who makes a complaint.
This right is sometimes violated by nursing homes. A nursing home must have an effective procedure for receiving complaints from elderly people and for responding to those complaints. If a person complains about poor care, or if a family member speaks up about poor conditions at a facility, it is a violation of this law for the nursing home, or any of its employees, to intimidate or retaliate in any way against the resident or the family.
When it appears that retaliation or reprisal is occurring because of complaints or reporting of problems, call the Texas Department of Aging and Disability Services or this office.
Right to Privacy
An elderly person is entitled to privacy while attending to personal needs and a private place for receiving visitors or associating with other people, unless providing privacy would infringe on the rights of other people.
This right applies to:
- medical treatment,
- written communications,
- telephone conversations,
- meeting with family,
- access to resident councils, and
- mail delivery and privacy.
In addition, if an elderly individual is married and the spouse is receiving similar services, the couple may share a room.
No one has the right to restrict visits to an elderly person, nor force an elderly person to receive a visitor he or she does not wish to see.
Sometimes a nursing home or other residential provider will try to exclude visitors who advocate on behalf of the elderly person or who might otherwise challenge the facility’s control. While other residents’ rights must also be considered (loud, boisterous visitors might be asked to leave, for example), a nursing home or other facility cannot use this as a pretext for excluding visitors the resident wishes to meet with.
Right to Participation in Activities
An elderly person may participate in activities of social, religious, or community groups unless the participation interferes with the rights of other people.
Right to Manage Financial Affairs
An elderly person may manage his or her own personal financial affairs, or may authorize another person to do so in writing. The elderly individual may choose the manner in which his or her money is managed by another person, and may choose the least restrictive of methods, such as:
- a money management program,
- a representative payee program,
- a financial power of attorney, or
- a trust or similar method.
A person designated to manage an elderly individual’s money must comply with all applicable policies, laws and rules. On request, the designated person shall make available the related financial records and provide an accounting of the money. Designating a person to manage their money does not affect an elderly person’s ability to exercise other rights. However, if an elderly person has a guardian designated by a court, the guardian shall manage the person’s money in accordance with the Probate Code and other applicable laws.
Elderly people may want help with their finances, but unless they hand control over to another, they have the same right as anyone else to receive, spend, invest, save, or give away their money. In situations where a nursing home, family member or guardian has been granted permission to manage a person’s money, that person still has the right to decide how his or her money will be managed, and to receive a full financial accounting.
Sometimes a family member, “friend,” or nursing home takes control of an elderly person’s money without that person’s permission—often for his or her “own good.” This may be a violation of the person’s rights, and should prompt a call to The Department of Family and Protective Services or a reputable attorney for advice.
Right to Access and Confidentiality of Records
An elderly person is entitled to access his or her own personal and clinical records. These records are confidential and may not be released without permission, except to another person providing services at the time the elderly individual is transferred; or if required by another law.
Right to Information and Choice Regarding Medical Conditions and Care
Elderly individuals have the right to understand and participate in their treatment plans, by:
- Being fully informed by their service provider, in understandable language, of his or her total medical condition and any significant changes.
- Choosing and retaining a personal physician, and being fully informed in advance about treatment or care that may affect his or her well-being.
- Participating in an individual plan of care that describes the person’s medical, nursing and psychological needs and how the needs will be met.
- Refusing medical treatment after the service provider advises of the possible consequences of refusing and the elderly person acknowledges that he or she clearly understands the consequences of refusing treatment.
Right to Keep Possessions
An elderly person may keep and use his or her personal possessions, including clothing and furnishings, as space permits. The number of personal possessions may be limited for the health and safety of other people.
Right to Refuse to Perform Services
An elderly individual may refuse to perform services for their service provider.
Right to Information About Benefits
By 30 days from when the elderly person is admitted for service, a service provider shall inform the person:
- whether her or she is entitled to benefits under Medicare or Medicaid; and
- which items and services are covered by these benefits, including items and services for which the person may not be charged.
Right to Remain with Chosen Service Provider
A service provider may not transfer or discharge an elderly person unless:
- the transfer is for the person’s welfare, and the person’s needs cannot be met by the service provider;
- the person’s health is improved sufficiently so that services are no longer needed;
- the person’s health and safety or the health and safety of others would be endangered if the transfer or discharge was not made;
- the service provider ceases to operate or to participate in the program that reimburses the service provider for the person’s treatment or care; or
- the person fails, after reasonable and appropriate notices, to pay for services.
Except in an emergency, a service provider may not transfer or discharge an elderly person from a residential facility until 30 days after the service provider gives written notice to the person, the person’s legal representative, or a member of the person’s family stating:
- that the service provider intends to transfer or to discharge the person;
- the reason for the transfer or discharge (listed above)
- the effective date of the transfer or discharge;
- if the person is to be transferred, the location where the person will be transferred; and
- the person’s right to appeal the action and to whom the appeal should be directed.
If the elderly person is in a Medicaid-certified nursing home, the Texas Department of Aging and Disability Services provides a hearing process for anyone wishing to object to being discharged. Residents do not have to have a lawyer for these hearings—they are informal and aimed at achieving a fair result.
In an emergency, (for example, when the health or safety of other residents is jeopardized by the elderly person’s continued presence), a resident could be transferred to a hospital or another appropriate place for treatment without notice or a hearing.
If you know of any elderly person who is threatened with discharge from a nursing home, and none of these legal reasons apply, call the Texas Department of Aging and Disability Services or this office.
Rights to Make Other Legal Decisions and Documents
An elderly person may:
- make a living will by executing a directive under the Advance Directives Act (Subchapter B, Chapter 166, Health and Safety Code);
- execute a medical power of attorney under the Advance Directives Act (Subchapter B, Chapter 166, Health and Safety Code);
- designate a guardian in advance of need to make decisions regarding the person’s health care should the person become incapacitated.
We have the Elder law expertise you need
Brown Law PLLC has over 19 years of experience helping Texas families meet their estate planning and elder care needs. The quality work we do, combined with how much trust clients place in us to handle these matters so they can focus on what’s important for themselves and loved ones has earned Brown Law a national reputation as an excellent choice when looking at legal representation or consulting about any issues regarding family members’ health, well being & security during aging processes such as Medicare eligibility requirements (or lack thereof).