Elder Law

What are some common questions about Living Wills and Health Care Powers of Attorney? Close

Q: Aren’t Living Wills or Health Care Powers of Attorney just for older people?

A: It is important for anyone over age 18 to think about filling out one or both of these documents. Serious illness or injury can strike at any stage of life. A Living Will or Health Care Power of Attorney will help to ensure that your wishes regarding life-sustaining treatment are followed regardless of age, and that when you are no longer able to voice your own wishes, your prior decisions are followed or made for you by the person you choose.

Q: Can I include the fact that I wish to donate my organs after death through a Living Will or Health Care Power of Attorney?

A: The best way to ensure that your organs will be donated after death is to complete the Donor Registry Enrollment Form included in this packet.

Q: If I state in my Living Will that I don’t want to be hooked up to life support equipment, will I still be given medication for pain?

A: Yes. A Living Will affects only care that artificially or technologically postpones death. It would not affect care that eases pain. For example, you would continue to be given pain medication and other treatments necessary to keep you comfortable. The same is true with a Health Care Power of Attorney. The person you name to make your health care decisions would not be able to order the withholding of treatments that provide you comfort or alleviate pain.

Q: If I have a Living Will, won’t my physician be more likely to give up on me if I become really sick?

A: No. Physicians have a duty to maintain life as long as there is hope of recovery. A Living Will simply allows you to determine how much life-sustaining treatment you wish to receive in order to postpone dying once two physicians have determined that you will not recover.

Q: Which is better to have, a Living Will or a Health Care Power of Attorney?

A: Actually, it is a good idea to fill out both documents because they address different aspects of your medical care. A Living Will applies only when you are terminally ill and unable to communicate your wishes or if you are permanently unconscious. A Health Care Power of Attorney becomes effective even if you are only temporarily unconscious and medical decisions need to be made. For example, if you were to become temporarily unconscious due to an accident or surgery, the person you name in your Health Care Power of Attorney could make medical decisions on your behalf. If you have both documents and become terminally ill and unable to communicate or become permanently unconscious, the Living Will would be followed since it speaks to your wishes in these situations.

Q: When does a Living Will or Health Care Power of Attorney become effective?

A: A Living Will becomes effective if you are terminally ill and unable to express your wishes regarding health care or if you are permanently unconscious. In both cases, two physicians, not just one, must agree that you are beyond medical help and will not recover. If you have indicated that you do not want your dying to be artificially prolonged and two physicians say that there is no reasonable hope of recovery, your wishes will be carried out.

A Health Care Power of Attorney becomes effective whenever you lose the ability to make your own decisions, even if only temporarily. At these times, health care decisions will be made by the person you designate.

Q: Can I draft a Living Will or Health Care Power of Attorney that says if I become critically ill, I want everything possible done to keep me alive?

A: Yes. But you can’t use the standard forms in this packet. You would need to speak with an attorney about drafting a special document. You also may want to discuss this approach with your personal physician.

Q: If I name someone in my Health Care Power of Attorney to make decisions for me, how much authority does that person have and how can I be certain that he or she is doing what I want done?

A: The person you name as your attorney-in- fact has the authority to make decisions regarding aspects of your medical care if you become unable to express your wishes. For this reason, you should tell the person you name how you feel about life-sustaining treatment, being fed through feeding and fluid tubes, and other important issues.

Also, it is important to remember that a Health Care Power of Attorney is not the same as a financial Power of Attorney, which you might use to give someone authority over your financial or business affairs.

Q: If my condition becomes hopeless, can I specify that I want my feeding and fluid tubes removed?

A: Special instructions are needed to allow for the removal of feeding or fluid tubes if you become permanently unconscious and if the feeding and fluid tubes aren’t needed to provide you with comfort.

If you want to make certain that the tubes are removed should you become permanently unconscious, you need to place your initials on the space provided on the Living Will or Health Care Power of Attorney form. If you don’t want the tubes removed when you are permanently unconscious, then don’t initial the forms.

Q: Do I have to use the standard forms for a Living Will or Health Care Power of Attorney or can I draw up my own documents?

A: These forms (click here to access details), which were produced jointly by the Ohio State Bar Association, the Ohio State Medical Association, the Ohio Hospital Association and the Ohio Hospice & Palliative Care Organization, comply with the requirements of Ohio law, but you do not have to use these forms. You may wish to consult an attorney for assistance in drafting a document or you may draft your own. However, in either case, the documents must comply with the specific language spelled out in the Ohio Revised Code.

I am a senior and a homeowner. Are there any special tax breaks for me? Close

Ohio’s Homestead Exemption exempts the first $25,000 of the value of your home from being taxed.     For example, a home that is worth $100,000 will be taxed as if it were worth $75,000.   On average people who qualify save $400 a year.

Who is eligible?   Homeowners who:

  1. Are 65 years old or will turn 65 this year, or
  2. Were permanently and totally disabled on or before the 1st day of the year in which they file, or
  3. Are the surviving spouse of a person who was already enrolled in Homestead, and the survivor was at least 59 years old when the spouse died.

What property is eligible for the exemption?

  1. The property must be the place where you live most of the time, and
  2. You must have been living there as of January 1st, and
  3. Your name must be on the deed; if the property is held in a trust, you must have a copy of the trust.

You must apply for the exemption by June 3, 2013.   (A late application can also be filed for last year.)

If you apply based on your AGE, you must have PROOF OF AGE.   For proof, you can use things like a driver’s license (current or expired), State of Ohio ID card, birth certificate or passport (current or expired).

If you apply based on DISABILITY, you must have PROOF OF DISABILITY.   For proof, you can give things like the Auditor’s Certificate of Disability form signed by your doctor OR a statement from Social Security, the Department of Veterans Affairs, the Railroad Retirement Board, or the Ohio Bureau of Workers Compensation finding you to be totally and permanently disabled.

If you are found to be eligible, you do not have to re-apply in future years.

To get an application form, more information and help, call your county Auditor’s Homestead Department:

  • In Cuyahoga County, call 216.443.7101
  • In Ashtabula County, call 440.576.3793
  • In Lake County, call 440.350.2536
  • In Geauga County, call 440.279.1617
  • In Lorain County, call 440.329.5207

This article was written by Legal Aid attorney Marley Eiger and appeared in The Alert: Volume 29, Issue 1. Click here to read the full issue.

What should I know about pre-paid debit cards? Close

People are swiping more at the checkout line, and they are not using a traditional credit or debit card. Millions of consumers are now using prepaid debit cards to make payments. Prepaid cards are debit cards without a bank account attached. Cards provide instant benefits to customers including access to a wide array of ATM networks, faster payment, and less of a need to carry cash.

The speedy growth in the prepaid debit card market is due to several needs. First, nearly 30 percent of Ohioans are under-banked. This means either they have no bank account or they have an account but use check cashers and fringe lenders. These cards fill some of that void. Second, cards reduce costs to employers and government agencies. It is cheaper and quicker to use a debit card than to produce a paper check. Ohio has moved to cards (if direct deposit is not used) for unemployment and food assistance. Social Security, if not direct deposited, is now also provided on debit cards. Nevertheless, there are some costs to the consumer. Consumer advocates have rightful concerns about the fees on these cards and how much the user knows about them. Some cards charge for basic services like monthly access and ATM fees. Additional fees include overdraft, replacement, paper statements, customer service calls, and load fees. A major concern is that some cards have a point-of-sale transaction fee, meaning a charge “per” swipe. The overall concern is that fees will add up and reduce the overall benefit of the card.

Perhaps the largest challenge for clients entering the field of prepaid debit cards is the abundance of choices. There are hundreds of different cards with different fee structures. Greater openness is needed so that customers can compare cards to each other. A nonprofit research group, CFSI, designed a disclosure box that is an excellent way for customers to understand the costs of a card and compare it to others (see below).

Some advice for card shopping includes:

  • Stay away from celebrity-branded cards, which often have higher fees;
  • Avoid cards with overdraft fees and lines of credit;
  • Determine what functions are of interest to identify the best card; and
  • Direct deposit into a bank account is almost always the best option.

This FAQ was written by David Rothstein of Policy Matters Ohio and the New America Foundation,    and appeared as a story in Volume 28, Issue 3 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

I receive my Social Security, SSI or other benefit payments through checks: how will the 2013 policy changes affect me? Close

If you, a friend, or family member is getting Social Security benefits, Supplemental Security Income (SSI) or any federal payment, it is likely that you get them electronically. However, many people still get benefits and other payments with a paper check.

Soon, people will not be able to get a paper check in the mail. By March 1, 2013, nearly all federal payments will be made electronically. This will include Social Security and SSI benefits.

People will be given two ways to receive their benefits. One choice will be direct deposit to the person’s bank or credit union account. The federal check then will go straight into the person’s account on payment day each month.

Another way to get a payment will be with a direct express debit card account. Money would be put on the card’s account on payment day each month. Payments will then be available for the person to make purchases and get cash back with purchases. To learn more about direct express go to www.GoDirect.org.

People who still get paper checks now need to change the way their payments come to them. The change can be made at the local federal benefit agency office, on line at www.GoDirect.org or by calling the U.S. Treasury Electronic Payment Solution Center at 800.333.1795. For direct deposit, people can also make the change at their bank or credit union.

People who are just applying for benefits will not be able to get paper checks. They will only be able to receive federal benefit payments electronically. Their choice will be to get their payments by direct deposit or on the direct express card. When they apply, they will have to choose one of these ways for payment. If they want to choose direct deposit, they will have to provide their bank or credit union account information.

The government said it made the change from paper checks because it is safer and easier. It also saves taxpayers money and is good for the environment.

This FAQ was written by Legal Aid attorney Karla Perry,    and appeared as a story in Volume 28, Issue 3 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

Do seniors qualify for food assistance? Close

Many seniors struggle to pay bills while on a fixed income. They might have to choose between buying food or medication. Under the federal Supplemental Nutrition Assistance Program (SNAP), seniors may qualify for food stamps (now called “food assistance”) to help buy food.

In Ohio, a person can apply for food assistance at the local County Department of Job and Family Services. They can apply in-person, by phone, or on line. If you apply by phone, you will be mailed an application that same day. Later, you will need to have a face-to-face interview with your caseworker. You will also have to give proof of your income and bills (e.g. rent and utilities receipts, bank statements). It is important that you mail, fax, or deliver these papers as soon as possible.

Whether you can receive food assistance depends upon:

  • the number of people in your household,
  • your income, and
  • your resources (such as cash, savings and checking accounts).

Your income must be below a certain limit. A special income rule applies to elderly or disabled persons. The county will not look at your “gross” income, but will subtract certain expenses (such as heating and cooling expenses, mortgage or rent, and medical expenses), and use this “net” income to decide if you qualify.

A household with an elderly member (over 60 years old) can have up to $3,000 in resources. Household goods, most retirement plans, and the home you live in are not counted as a resource.

If you are approved, you will receive an “electronic benefits transfer” (EBT) card. Shopping with the card is like shopping with a bank debit or ATM card. You can buy food or food-related products, including seeds and plants to grow food. You cannot buy alcohol, tobacco, or vitamins. In 2012, a single senior can receive as much as $200 per month for food assistance. A household of two can receive up to $367 every month.

If you think you might qualify, you can do a quick check and apply at Ohio’s Benefit Bank online at www.thebenefitbank.com. You can also call your County Department of Job and Family Services or apply online at https://odjfsbenefits.ohio.gov.

This FAQ was written by Legal Aid attorney Deborah Dallman,    and appeared as a story in Volume 28, Issue 3 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

I am a senior with student loan debts. What help can I receive? Close

Many seniors are in default on student loans. These loans may have been taken out for them or others. Either way, Social Security is offsetting the benefits of social security retirees and disabled seniors with these debts.

By law, Social Security can take retirement and disability benefits to repay student loans in default. Social Security can take up to 15% of a person’s benefits. However, the benefits cannot be reduced below $750 a month or $9,000 a year. Supplemental Security Income (SSI) cannot be offset to repay these debts.

Before offset begins, Social Security sends a notice. Debtors should know that the notices they receive from Social Security are just to tell them that offset will begin. Debtors cannot appeal, challenge, change, or question this debt to Social Security. To do this, they must go back to the agency to which the debt is owed. The notices from Social Security will have the name and contact information for the agency that is claiming the debt is owed. To change or challenge the offset, the debtor will have to set up a payment plan, or argue hardship to the agency that is owed the money.

Debtors can avoid or stop an offset by getting the student loan out of default. Income Based Repayment (IBR) is an option. It gives borrowers a way to make loan payments. IBR provides for reasonable student loan payments based on a person’s income. Payments can be as low as $0. After 25 years on the program, any remaining debt is forgiven. People with loans in default cannot be in the program. However, people can get their loans out of default by making a number of “reasonable” payments. Once the loan is out of default, offset of benefits should stop.

This FAQ was written by  former Legal Aid attorney Carol Eisenstat,    and appeared as a story in Volume 28, Issue 3 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

How do I avoid identity theft? Close

For the twelfth year in a row, identity theft has been the #1 complaint reported to the Federal Trade Commission. What can you do to protect yourself?

  • Protect your social security number. Do not carry it in your wallet. Share it only when you know who you  are giving it to and why they need it.
  • Pick up your mail promptly. Do not leave it in a place where strangers can get it while you are away from home.
  • Shred bank and credit card statements, and any other financial documents or paperwork with personal information, before you discard them.
  • Keep personal information in a secure place at home, especially if you have roommates, outside help, or are having work done in your home.
  • Do not give out personal information on the phone, through the mail, or over the Internet unless you know  who you are dealing with.
  • Never click on links sent in unsolicited emails. Even if it looks like an email sent by your bank or by a  government agency: It could be a fake.
  • Do not use obvious passwords like your birth date, your mother’s maiden name, or the last four digits of your social security number.
  • Review your account statements regularly for charges you did not make. Also review your medical explanation of benefits forms to ensure that there are no surprise charges for medical benefits.
  • Check your credit report. Each year, you are entitled to a free copy of your credit report from the three major nationwide credit reporting agencies. It’s easy to get your report by calling Annual Credit Report at 1.877.322.8228.

If you suspect that you are a victim of identity theft, act quickly. Visit the Federal Trade Commission’s website at www.ftc.gov/idtheft or call 1-877-ID-THEFT for information about steps you can take to limit the damage. You may want to close affected accounts, file a police report, or call the Attorney General Consumer Protection Line at 1.800.282.0515. You can place a “fraud alert” on your credit report by calling one of the following companies:

  • Experian www.experian.com, 1.888.397.3742
  • Equifax: www.equifax.com, 1.800.525.6285
  • TransUnion: www.transunion.com, 1.800.680.7289  

Be careful with your personal information and take action immediately if you think someone has stolen your identifying information.

*The views expressed in this article are those of the author alone. She does not express the views of the FTC or of any individual commissioner.

This FAQ was written by  FTC Attorney Maria Del Monaco,   and appeared as a story in Volume 28, Issue  2 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

How can I get assistance with my gas, electric, water, or telephone service? Close

Numerous programs help make utilities such as electricity, gas, water and telephone more affordable for consumers. Listed below are several such programs along with information about who is eligible and how to apply.

Gas and Electric Service

In the summer, if you are 60 or more years old, you may qualify to receive $250 for an air conditioner and/ or utility assistance. Adults under 60 may qualify if you received a disconnection notice and you have a documented medical condition.

In the winter, emergency assistance is also available when households are threatened with disconnection or have less than a 10-day supply of bulk fuel in their tank.

The regular Home Energy Assistance Program (HEAP) for low-income consumers and the Percent of Income Payment Plan Plus provide year-round financial assistance to qualifying consumers. You may qualify for a one-time payment toward your gas bill and a payment plan based on your income on both your gas and electric bills. If you are already enrolled in PIPP and HEAP, you must continue to make monthly payments in order to remain eligible again next year.

For more information or to apply, contact the agency in the county where you live:

  • Ashtabula County – Ashtabula County Community Action Agency, Inc (440.997.5957), www.accaa.org
  • Cuyahoga County – Cleveland Housing Network (216.518.4014, or for seniors over 60 or anyone physically disabled call 216.774.2351 to schedule an in-home appointment), http://www.chnnet. com/electric-gas-bulk-fuel-water-assistance.aspx; Council for Economic Opportunities in Greater Cleveland (216.696.9077), www.ceogc.org.
  • Geauga County – Geauga Community Action, Inc. (440.285.9141)
  • Lake County – Lifeline For Empowerment and Development of Consumers (440.354.2148), www.lclifeline.org
  • Lorain County – Lorain County Community Action Agency, Inc. (440.245.2009)

Water Service

Customers of the Cleveland Water Department may be eligible for the Water Affordability Program, which provides a 40% discount to qualifying households. You must be the homeowner, live in the home, and meet income guidelines to qualify. You can call Cleveland Housing Network at 216-774-2386 to apply or download an application at: http://www.chnnet.com/electric-gas-bulk-fuel-water-assistance.aspx

Water Department customers who are 65 years or older, or who are totally and permanently disabled, may qualify for the Homestead Program. Call the Cleveland Water Department Customer Service Department at 216-664- 3130 to apply or download the application at http://www.clevelandwater.com/Resident/discountprograms.aspx.

Telephone Service

Residents of Ohio who have income at or below 150% of the federal poverty guidelines or who participate in programs such as Medicaid, public housing, HEAP, free school lunch, food stamps, SSI, or Ohio Works First, may qualify for discounted landline and cell phone service.

The Lifeline Ohio program offered to AT&T customers provides eligible customers a $12.50 per month credit on their landline telephone bills, as well as benefits such as free line connection and payment plans on outstanding balances. Call 1-800-335-8721 to sign up (TTY users call 1-800-980-4889). See http://www.att.com/gen/general?pid=10252 for more information.

SafeLink Wireless provides qualified applicants a free phone and a choice of three monthly minute plans without a contract or bill. Additional minutes can be purchased with a TracFone card. You can apply by calling 1-800-Safelink or online at: https://www.safelinkwireless.com/Safelink/program_info/faq/ohio.

Important Consumer News about Telephone Service

Telephone companies in parts of Ohio are attempting to discontinue landline phone service to customers or require that customers bundle landline service with other services. Senate Bill 271 which passed the Ohio Senate in February 2012 is now being considered by the Ohio House of Representatives. The phone companies say that by eliminating landline service they will have more resources to concentrate on other services customers want. The consequence may be that currently affordable landline service for seniors and low-income customers will not be available as early as 2014.

This FAQ was written by John Kirn, Esq. and Anne Sweeney, Esq. and appeared as a story in Volume 28, Issue  2 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

What is Bankruptcy Bypass? Do I qualify? Close

Since 2009, Legal Aid has helped seniors and persons with disabilities deal with harassing creditors through the Bankruptcy By-Pass Program. Volunteer attorneys, through the Cleveland Metropolitan Bar Association, assess clients’ ability to pay creditors. This program advises creditors that the harassing calls and letters must stop once the volunteers determine the client is “judgment proof.”

To be “judgment proof” means that the law will not allow the person’s income to be garnished or attached. There are many types of income that cannot be attached, or taken out of a bank account by a creditor that has gone to court and gotten a judgment against that person. Some common sources of protected income include social security, SSI, and veterans’ benefits. People helped by this program do not own any homes and are not likely to work again. They also own personal property, like furniture, clothing and cars that cannot be taken by creditors because of the value of the items.

People who seek help through this program often believe that the only option to stop the creditors’ harassing phone calls is to file bankruptcy. However, bankruptcy is not always the best choice. People can only file a personal bankruptcy once every eight years. Clients in this program are not at risk of having their money or assets taken by creditors. Because of this, volunteer attorneys will advise clients about the benefits of not using their right to file bankruptcy.

Since the program began, volunteers have helped over 100 people. Many clients comment that it feels as if a weight is lifted once the harassment stops. Creditors often give people wrong information about what funds a creditor can collect. Many people fear they will be charged criminally for not paying bills. As a result, they still try to make payments to credit card companies but cannot pay more than the interest fees. The By-Pass program will help clients sort out what expenses need to be paid each month including rent, utilities and medical costs.

If you think this program can help you, please call Legal Aid’s intake line at 216-687-1900 or 1-888-817-3777. You will be asked a number of questions to find out if the By-Pass program can help you. If it cannot, Legal Aid may still be able to assist you.

This FAQ was written by Lauren Gilbride, Esq. and appeared as a story in Volume 28, Issue  2 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

What should I know about payday loans? Close

In June 2008, consumer advocates celebrated when former Governor Strickland signed the Short- Term Loan Act. The Act capped annual interest rates on payday loans at 28%. It also provided for several other protections on the use of payday loans. Consumers had another victory in November 2008. Ohio voters upheld this new law by a landslide vote. However, these victories were short-lived. The payday loan industry quickly came up with ways to get around the new law and continues to operate in a predatory way. Today, four years after the Short-Term Loan Act passed, payday lenders continue to avoid the law.

Payday loans in Ohio are usually small, short-term loans where the borrower gives a personal check to the lender payable in two to four weeks, or allows the lender to electronically debit the borrower’s checking account at some point in the next few weeks. Since many borrowers do not have the funds to pay off the loan when it is due, they take out new loans to cover their earlier ones. They now owe even more fees and interest. This process traps borrowers in a cycle of debt that they can spend years trying to escape. Under the 1995 law that created payday loans in Ohio, lenders could charge an annual percentage rate (APR) of up to 391%. The 2008 law was supposed to address the worst terms of payday loans. It capped the APR at 28% and limited borrowers to four loans per year. Each loan had to last at least 31 days.

When the Short-Term Loan Act became law, many payday lenders predicted that following the new law would put them out of business. As a result, lenders did not change their loans to fit the new rules. Instead, the lenders found ways to get around the Short-Term Loan Act. They either got licenses to offer loans under the Ohio Small Loan Act or the Ohio Mortgage Loan Act. Neither of these acts was meant to regulate short-term loans like payday loans. These two laws allow for fees and loan terms that are specifically not allowed under the Short-Term Loan Act. For example, under the Small Loan Act, APRs for payday loans can reach as high as 423%. Using the Mortgage Loan Act for payday loans can result in APRs as high as 680%.

Payday lending under the Small Loan Act and Mortgage Loan Act is happening all around the state. The Ohio Department of Commerce 2010 Annual Report shows the most recent breakdown of license numbers. There were 510 Small Loan Act licensees and 1,555 Mortgage Loan Act registrants in Ohio in 2010. Those numbers are up from 50 Small Loan Act licensees and 1,175 Mortgage Loan Act registrants in 2008. On the other hand, there were zero Short-Term Loan Act registrants in 2010. This means that all the payday lenders currently operating in Ohio are doing business under other laws and can charge higher interest and fees. No payday lenders are operating under the new Short-Term Loan Act. The law specifically designed to protect consumers from abusive terms is not being used. These are troubling numbers for consumers in need of a small, short-term loan with fair terms.

As of right now, there are no new laws being considered in the Ohio General Assembly that would close these loopholes and solve the problems with the 2008 law. The payday loan industry has avoided the Short-Term Loan Act for four years, and it does not look like this problem will be resolved soon. As a result, it is important for consumers to remain cautious about payday loan stores and, where possible, borrow from places other than payday lenders.

This FAQ was written by Katherine Hollingsworth, Esq. and appeared as a story in Volume 28, Issue  2 of “The Alert” – a newsletter for seniors published by Legal Aid. Click here to read the full issue.

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