FAQ

Elder Law is an area of law that addresses issues related to aging, incapacity, and death, most often associated with senior clients and their families.  It is an area that can combine many different areas of law as it relates to older adults and the issues surrounding them.  

Medicaid is a financial need-based program.  Individuals who receive Medicaid are generally only allowed to have a certain dollar amount in assets and in monthly income to qualify to receive Medicaid.  Medicare is not a need-based program.  It functions more like medical insurance.

When a person receives Medicaid benefits, Medicaid and the state of Colorado through the Department of Health Care Policy & Financing can try to recover the funds paid by the government on a person’s behalf from that person’s estate.  Often a person who received Medicaid’s largest asset is his or her home.  Medicaid will often put a lien on that individual’s home after they pass away to try to recover the costs of the person’s Medicaid care.

Medicare does not cover long-term care.  Medicaid is the program that covers long-term care.

Elder abuse is the neglect, mistreatment or financial exploitation of an older adult.  An individual 70 years of age or older is considered an at-risk adult in Colorado.  At-risk adults are more vulnerable to, and disproportionately damaged, by crime.  Older adults are more susceptible to abuse, exploitation and neglect.  They are less able to protect themselves and many times the offenders may be those closest to them or someone in a position of trust. 

“Caretaker neglect” is when adequate food, clothing, shelter, psychological care, physical care, medical care, habilitation, supervision, or any other treatment necessary for the health or safety of an at-risk person is not secured for an at-risk person or is not provided by a caretaker in a timely manner and with the degree of care that a reasonable person in the same situation would exercise, or a caretaker knowingly uses harassment, undue influence, or intimidation to create a hostile or fearful environment for an at-risk person.  Caretaker neglect is a class 1 misdemeanor.  C.R.S. §18-6.5-102(6)

When a person knowingly uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk person of the use, benefit, or possession of any thing of value.  Criminal exploitation is a class 3 or class 5 felony depending on the value involved.  C.R.S. §18-6.5-103(7.5) 

Undue influence means the use of influence to take advantage of an at-risk person’s vulnerable state of mind, neediness, pain, or emotional distress. C.R.S. §18-6.5-102(13).  Undue influence is not a crime, but rather a method in which a person commits another crime such as theft or criminal exploitation.  

Older adults are more vulnerable and less able to protect themselves from those that might abuse or exploit them.  If you suspect elder abuse or exploitation has occurred, or is occurring, you should contact the police.  Many police departments have officers and investigators specially trained to detect and investigate elder abuse.  If you do not get the response you believe is appropriate, it may help to contact the department again and ask if there is someone that deals with elder abuse that you can speak with.  

A person that is an agent for another hold a fiduciary duty towards that person.  They must act in the person’s best interest and consistent with the estate plan of the person.  They are unable to use the money for their own needs and expenses or to engage in self-dealing.  To use the money contrary to the authorization in the power of attorney can be theft.  If you know someone exploiting someone financially, you should contact the police to start an investigation.  You can also contact an attorney to apply to the court to revoke the power of attorney and prevent further access to the finances of the older adult.