What should I know before consulting an attorney?

Estate planning requires an understanding of how various areas of law may impact one’s estate, such as estate law, probate law, tax law, marital law, real estate law, and Medicaid law, among others. If you want to ensure that your needs and concerns are effectively considered and your rights and options clearly explained to you, it makes sense to consult with an attorney with experience in elder law matters. While most attorneys can prepare simple deeds, wills and powers-of-attorney, you need more than a product. You need a thorough professional review of your resources, needs and objectives by someone who understands, cares and will give you the peace of mind you’re looking for. Experience and excellence does cost a little more, but it is well worth it. Can you afford not to do it right?

Consulting with an experienced estate planning professional is the first step to determining what really needs to be done. Then, you will be able to make an informed decision and enjoy the benefit of being guided by someone who understands your needs and concerns. Ignorance may be bliss in certain instances, but in the case of estate planning, you may never know just how much the failure to act actually costs you.

A caring estate planning professional will not rush you into making a decision or pressure you to do something you are not comfortable with. Procrastination is your greatest enemy. Act now by scheduling a comprehensive estate planning meeting. Once you understand what needs to be done, you can proceed with Peace of Mind, knowing that your concerns will be addressed.

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Spousal impoverishment refers to the concern that the community spouse will be left destitute because of the high cost of nursing home care. Most states have special rules intended to protect the community spouse by allowing the community spouse to retain a certain amount of the families resources and income to meet her monthly support and maintenance needs. To maximize the benefits that can be made available to the community spouse, one should consult with an experienced elder law attorney as soon as the possibility of nursing home care arises. If one waits until the last minute, one may have less options.

Since the State intends to provide Medicaid only when you have spent down almost everything you own, and the local department of social services’ role is to verify that you have done so, you should seek independent legal advice and not depend on the advice or determination of your local department of social services, social workers or nursing home admissions directors.

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How can I protect my home and income?

Asset protection is an important component of most estate planning. Traditional estate planning includes objectives such as: to avoid tax consequences; to protect the assets of minors and persons who are unable to manage money; to protect against those who might abuse one’s trust; to establish a plan to preserve one’s assets for retirement and for the support of loved ones. This generally is accomplished through wills, powers-of-attorney and trusts.

Asset protection planning in the context of Medicaid eligibility usually involves pre-crisis and in-crisis planning in the context of a medical emergency, or timely planning ahead to maximize opportunities to shelter income and assets for loved ones against the high cost of long-term nursing home care. Frequently, one can protect one’s home and savings, especially if one does not wait until it there is a crisis. To find out whether you can benefit from such planning, contact an elder law attorney to evaluate your case and explain your rights and options.

In the context of Medicaid eligibility, asset protection planning takes on a special urgency, and requires a different approach. This is because there are significant conflicts between the type of planning techniques one may use in the Medicaid planning context as opposed to traditional estate planning, arising from the rules and regulations pertaining to eligibility for Medicaid (medical assistance: long-term care). Given the high cost of nursing home care and the potentially devastating economic impact on the family, careful planning needs to be done and the plan must be implemented in a timely manner with care not to violate any of the myriad of medicaid rules and regulations that could result in ineligibility for Medicaid.

Although there are many complex rules and exceptions, basically, the applicant has to have spent down virtually all of his or her resources to be financially eligible for Medicaid. There are special rules and regulations that apply to such spend-down. Also, there are special provisions applying to spousal impoverishment, discussed below. One cannot necessarily avoid inclusion of ones assets by giving them away, transferring one’s home or establishing joint accounts. Special planning techniques are employed in appropriate cases to maximize asset protection opportunities. Because of the complicated technical rules, a thorough knowledge of the rules and regulations is essential. An experienced elder law attorney will be able to explain the process to you in simple terms, identify planning opportunities, help you protect your assets and income, and reduce the stress caused by fear of impoverishment.

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Do I need to sign over my house and savings to pay for the nursing home cost of care?

Different rules apply depending on the facts and circumstances. In many cases, the family home is or can be protected. The most important first step is to consult with an elder law attorney, who can evaluate your case and explain your rights and options. See the next question regarding asset protection planning.

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What is the difference between Medicare and Medicaid?

These are separate public assistance programs.

Medicare is a federal health program for the elderly and the disabled. Medicare provides temporary coverage of hospital, nursing home, home health care, hospice and other skilled care, and general medical insurance. One has to be at least 65 years old to be eligible. Medicare pays for reasonable and necessary medical services. Coverage is for a limited period, and after 20 days of full coverage, the recipient has to co-pay. Anyone who receives Social Security or railroad retirement benefits are entitled to Medicare and hospitalization insurance (Part A), and have the option of enrolling for general medical insurance (Part B). For additional information regarding eligibility, programs, coverage, etc, consult with an attorney with experience in these matters.

Medicaid, also known as Medical Assistance, is a federal program for the poor and the needy, administered by the States, with each State having its own regulations that modify and supplement the federal program. Medical Assistance is a comprehensive medical insurance program that covers long term care, including nursing home and comparable services provided by other facilities. Strict financial and medical eligibility criteria must be met. You apply for Medicaid at the local department of social services in your County. The application must be in writing and a personal interview at the Department of Social Services is required.

All of the applicant’s income and resources are carefully considered, including joint accounts, and assets just in the name of one’s spouse. If one gives away property, creates a medicaid qualifying trust or make transfers for less than fair value, the applicant will be subject to a penalty period during which the applicant will be ineligible for Medicaid. There are many complicated rules and traps for the unwary.

By consulting with an attorney experienced in elder law issues before a crisis develops, you will: (a) better understand how Medicaid considerations could impact your estate plan, and (b) be better able to make an informed decision and maximize the asset and income protection planning opportunities available to you. Timing is critical, and technical oversights may result in an unexpected and costly loss of eligibility. The benefits of timely and effective planning are well worth the cost of experienced professional guidance.

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Should I sign a nursing home contract?

While most people prefer not to enter or place a loved one in a nursing home, there are times when, despite one’s best intentions, one has no alternative. Because nursing home care is so expensive, typically between $4,000 and $6,000 a month, it is essential to consider the potential impact of nursing home care on one’s finances and to take advantage of whatever planning opportunities may exist. By doing so, you will maximize your options to protect the family assets and ensure that the community spouse is not left destitute.

Nursing homes have tremendous expenses, and their contracts are designed to protect the nursing home as much as possible. Although there are laws that protect nursing home residents and their families from over-bearing contracts and abuse, it is up to you to seek professional guidance and review of the contract before you sign it. You also want to be sure not to assume personal liability for the resident’s nursing home expenses. By obtaining professional legal advice before you sign anything, you will allow your attorney to show you how to avail yourself of income and asset protection planning opportunities that may no longer be available after the contract has been signed.

The quality of care your loved one receives at a nursing home depends a great deal on how much time you spend visiting and talking with the care-givers. The less interest you show, the greater the likelihood of neglect.

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What are the different types of nursing homes?

A nursing home provides room and board, personal care, protection supervision and medical care, licensed and regulated by State Departments of Public Health. Individually certified by the State for Medicare and Medicaid. Facilities accept a variety of Medicare, Medicaid, private insurance carriers, and private funds.

There are three levels of care provided by nursing homes:

Basic Care – Defined as the level of services required to maintain a resident’s activity of daily living. Includes personal care, ambulation, supervision and safety. This care can be provided by a nurse aide, practical nurse or a family member.

Skilled Care – Defined as the level of care which requires the services of a registered nurse, on a regular basis, for treatments and procedures. Skilled care also includes services provided by specially trained professionals, such as physical and respiratory therapists.

Sub-Acute – Comprehensive inpatient care designed for someone who has had an acute illness, injury, or exacerbation of a disease process. Subacute care is generally more intensive than traditional nursing facility care and less than acute care, requiring frequent (daily to weekly) recurrent patient assessment and review.

Many communities/facilities offer different levels of alternatives, commonly referred to as Continuing Care Centers or Life Care Communitees.

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What is Guardianship?

Guardianship refers to the authority granted to a person by the Court to take care of a disabled person’s person and / or property. If a family member or someone in need is unable to manage his or her affairs due to frailty, long-term illness, disability or mental incompetency, you can petition the court for guardianship.

A person is deemed to be competent unless a court has determined otherwise. Before making a decision, the court appoints an attorney to represent the interests of the alleged disabled person, and that attorney provides the court with a written report. The alleged disabled person’s assets and income needs to be reported to the court, and there are strict rules governing the management and accounting of the assets of the guardianship estate.

The court may, but is not required to appoint the petitioner as guardian. There is no specific test to be met for a guardianship award. The court takes into account all the facts and circumstances and uses its discretion to make an equitable determination. An experienced attorney can assist you by explaining how a court may view the particular case and what should be done to satisfy the court to increase your chances of being appointed.

A guardianship order can be obtained in a day or two in an emergency situation, otherwise the process can take a month or several months. The cost, delay and administrative inconvenience of a guardianship can be avoided by having a durable general power-of-attorney signed before one becomes incompetent.

Planning and timing is important. Everyone, and senior citizens especially, should meet with an attorney with experience in these matters to review their basis estate planning needs and plan for disability. Having a power-of-attorney in place will make it easier for your representative to act quickly on your behalf and avoid the stress, delay, inconvenience and expense of a guardianship proceeding.

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When does a mentally competent person need guardianship?

One is not legally incompetent until a court make that determination. For family and estate planning purposes, it is important to obtain a professional evaluation of the person’s condition before determining that the person is mentally incompetent. If the person lacks the mental capacity to understand and to make rational decisions, one will need to apply for guardianship in order to have full legal authority to make business and health-care decisions to act on the person’s behalf. However, a guardianship may not be necessary in all circumstances.

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When is a person mentally incompetent?

Mental incompetence relates to one’s legal capacity to understand and to make rational decisions. A person who is unable to manage his or her affairs due to frailty, long-term illness, or disability, is not necessarily mentally incompetent. Frequently, such a person is mentally astute, but needs someone to manage his or her business affairs. This issue frequently arises in the context of whether the person is able to sign a Will, a deed, or a Power-of-Attorney.

The most common causes of mental incompetence include Alzheimer’s Disease, dementia, and strokes. Alzheimer’s and dementia are degenerative diseases, and affects people differently. Sometimes a person who is on certain types of medication, or heavily medicated, may appear to be mentally incompetent, but that condition may be temporary. Also, the person may have lucid intervals during which the person is able to understand and make rational decisions.

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