JUST IN CASE: Quick Guide: Elder Law (Selected Federal & Ohio ...

What is Elder Law? (Margaret H. Kreiner, Ohio Elder Law ?3:1 (2010))

Elder law has finally been recognized as a viable law profession. Elder law is not new. Although often called ?Geezer Law,? it is more than just law for the elderly. Elders have a lot of needs in common with the disabled. The practice of elder law often includes the disabled, especially when the disabled are the adult children of the elders.

Elder law attorneys do not have a subject area of the law in which they practice; the clientele is the focus. Basically, any legal need of the elderly comes under this umbrella. It follows that not every elder law attorney practices in all areas of elder law. Most of them are focused in three or four areas.

The areas of elder law are:

1. Probate, will contests, will construction
2. Trusts: living, special needs, generation skipping
3. Estate planning, financial divorces
4. Wills
5. Guardianships
6. Housing: nursing homes, assisted living, group homes, Section 8
7. Medical malpractice/wrongful death: doctors, hospitals, nursing homes
8. Nursing home litigation
9. Medicaid
10. Medicare
11. Social Security, railroad retirement, State Teachers Retirement System (STRS), Public Employees Retirement System (PERS)
12. Elder abuse
13. Advanced healthcare directives
14. Powers of attorney
15. Conservatorships
16. Mentally ill, low IQ, mentally retarded
17. Insurance: life, long-term
18. Disabled
19. Supplemental Security Income (SSI), food stamps
20. Veteran's benefits
21. Funeral, cremation, burial
22. Pensions, IRAs, 401(k)s
23. Age discrimination
24. Grandparent's rights
25. Taxes: estate, federal, Ohio
26. Planning for incapacity and the dying client

Topical Resources

Healthcare & Social Security: FEDERAL
? Medicare website
? Medicare Resources website
? Social Security Administration. How to Find Medicare Information

Healthcare & Social Security: OHIO
? Medicaid information
? Pro Seniors Inc.

Guardianship: OHIO
Guardians; Conservatorships, O.R.C. ?2111, et seq.
? O.R.C. ?2111.02 Appointment of guardian - limited, interim, emergency, or standby guardian ? nomination
? O.R.C ? 2111.01 Guardian and conservatorship definitions
? O.R.C ? 2111.13 Duties of guardian of person

Estate Planning: OHIO
OHIO Wills: Living Wills, Last Will O.R.C. ? 2107, et seq.

OHIO Power of Attorney: O.R.C. ? 1337, et seq.

Age Discrimination: FEDERAL

The Age Discrimination in Employment Act of 1967 (ADEA)
This law protects people who are 40 or older from discrimination because of age. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Title I of the Americans with Disabilities Act of 1990 (ADA)
This law makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business.
Sections 102 and 103 of the Civil Rights Act of 1991
Among other things, this law amends Title VII and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases.

Sections 501 and 505 of the Rehabilitation Act of 1973
This law makes it illegal to discriminate against a qualified person with a disability in the federal government. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business.

Elder Abuse: OHIO O.R.C ? 5101.60 et seq. cover the procedures for reporting and investigating elder abuse.

Elder Capacity

Incompetent is defined by O.R.C. ? 2111.01(D) to mean:
any person who is so mentally impaired as a result of a mental or physical illness or disability or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking care of the person's self, or the person's property, or fails to provide for the person's family, or other persons for whom the person is charged by law to provide, or any person confined to a penal institution within this state.

ERISA: FEDERAL, 29 USC ?1001 et seq.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.

ERISA requires plans to provide participants with plan information including important information about plan features and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; and gives participants the right to sue for benefits and breaches of fiduciary duty.

There have been a number of amendments to ERISA, expanding the protections available to health benefit plan participants and beneficiaries. One important amendment, the Consolidated Omnibus Budget Reconciliation Act (COBRA), provides some workers and their families with the right to continue their health coverage for a limited time after certain events, such as the loss of a job. Another amendment to ERISA is the Health Insurance Portability and Accountability Act (HIPAA) which provides important new protections for working Americans and their families who have preexisting medical conditions or might otherwise suffer discrimination in health coverage based on factors that relate to an individual's health. Other important amendments include the Newborns' and Mothers' Health Protection Act, the Mental Health Parity Act, and the Women's Health and Cancer Rights Act.
In general, ERISA does not cover group health plans established or maintained by governmental entities, churches for their employees, or plans which are maintained solely to comply with applicable workers compensation, unemployment, or disability laws. ERISA also does not cover plans maintained outside the United States primarily for the benefit of nonresident aliens or unfunded excess benefit plans.

Taxation: FEDERAL
Estate Tax: FEDERAL
Gift Tax: FEDERAL
Forms and Publications for Estate and Gift Tax

SECONDARY SOURCES

Westlaw

Elder Law Primary Directory
1 Elderlaw Advoc. Aging (2d ed.)
Baldwin's Ohio Practice - Elder Law (OHPRAC-ELD)

Source: http://blog.case.edu/law-library/2011/05/13/quick_guide_elder_law_selected_federal_ohio_resources

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