How Do I Hire an Elder Law Attorney?

Elder law attorneys are lawyers who assist the elderly and their family members, and caregivers with legal questions and planning related to aging.

These attorneys frequently are called upon to assist with tax planning, disability planning, probate and the administration of an estate, nursing home placement, as well as a host of other legal issues, says Forbes’ recent article entitled “Hiring An Elder Law Attorney.”

In addition, there are some elder law attorneys who have the designation of Certified Elder Law Attorney (CELA), a certification issued by the National Elder Law Foundation. A Certified Elder Law Attorney must meet licensing and other requirements, including specific experience in elder law matters and continuing education in elder law. However, note that an elder law attorney does not need to have the CELA certification to be an experienced elder law attorney.

There are many elder law attorneys who specialize in Medicaid planning to help protect a senior’s financial assets, if they suffer from dementia or another debilitating illness that may require long-term care. Elder law attorneys also prepare estate documents, such as a durable power of attorney for health and medical needs and a living will. As you age, the legal issues that you, your spouse, and/or your family caregivers must address can also change.

If you are a senior, then you should have durable powers of attorney for financial and health needs, in the event that you or your spouse becomes incapacitated. You might also need an elder law attorney to help you transfer assets if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Healthy people over 65 are in the best spot to do more than having estate planning documents prepared. That’s because they have the opportunity to develop a holistic strategy beyond the legal documents. This can give assurances that the family members and professionals they’ve assembled understand the principle of supported decision-making and how it will be implemented.

For example, an elder law attorney may focus on finding the least restrictive residential environment and making other health care and financial choices. An elder law attorney can also protect seniors with diminished capacity, who are being victimized by personal and financial exploitation.

An initial consultation with an elder law attorney will help determine the types of legal services they can offer, and the fees associated with these services.

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

What Happens to My Home If I Go to a Nursing Home?

An aging parent who does not have any other assets and believes she would end up on Medicaid sooner rather than later, may not know what would happen to the house that is in both her name and the name of her son.

Nj.com’s recent article entitled “What happens to my house if I go into a nursing home?” says that timing is everything, and the answer may depend on when and how the son obtained his interest in the parent’s house.

If the parent owned the house and put her son’s name on the deed along with hers, the parent made a gift of an interest in the house to her son.

Medicaid has a five-year look back period when a senior applies for Medicaid.

If an applicant made any gifts during this look back period, a penalty period will apply. During that time, an applicant isn’t eligible for Medicaid. However, if the gift was made prior to the five-year period, the penalty period is inapplicable.

If the son bought the interest in the parent’s house, the Medicaid lookback rules don’t apply.

However, in any event, Medicaid requires an applicant to “spend down” her assets to $2,000 (in most states, but the amount may vary) to qualify for the program.

A home the parent or a spouse or disabled child are living in will be considered exempt. However, it won’t be exempt if the parent, spouse, or disabled child, aren’t living in it and have no expectation of returning to it.

If the parent will not be living in or returning to her home, the parent will need to sell her interest in the home before she qualifies for Medicaid.

Alternatively, the parent and her son will have to sell the home, and she will have to use her share of the proceeds before she can qualify for Medicaid.

In addition, if the son is also providing a level of care for the parent for a period of at least two years, the parent has allowed you to stay in her home and not have to relocate to a nursing facility sooner. This exception has a complex set of rules.

Medicaid is complicated and the above information is only general in nature. Medicaid rules sometimes change and can even be applied differently based on where you live. You should consult with an estate planning or elder law attorney to make certain you take the steps that will be most beneficial to your specific set of circumstances.

Reference: nj.com (June 4, 2021) “What happens to my house if I go into a nursing home?”

What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly. The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

Estate planning and administration, including tax issues
Medicaid, disability, and long-term care issues; and
Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”

Can I Be Paid for Caring for a Loved One?

AARP’s recent article entitled “Can I Get Paid to Be a Caregiver for a Family Member?” says that roughly 53 million Americans provide care without pay to an ailing or aging loved one. They do so for an average of nearly 24 hours per week. The study was done by the “Caregiving in the U.S. 2020” report by AARP and the National Alliance for Caregiving (NAC).

Medicaid. All 50 states and DC have self-directed Medicaid services for long-term care. These programs let states grant waivers that allow qualified people to manage their own long-term home-care services, as an alternative to the traditional model where services are managed by an agency. In some states, that can include hiring a family member to provide care. The benefits, coverage, eligibility, and rules differ from state to state.

Veterans have four plans for which they may qualify:

Veteran Directed Care. This plan lets qualified former service members manage their own long-term services and supports. It is available in 37 states, DC, and Puerto Rico for veterans of all ages who are enrolled in the Veterans Health Administration health care system and need the level of care a nursing facility provides but want to live at home or the home of a loved one.

Aid and Attendance (A&A) benefits. This program supplements a military pension to help cover the cost of a caregiver, who may be a family member. These benefits are available to veterans who qualify for VA pensions and meet certain criteria. In addition, surviving spouses of qualifying veterans may be eligible for this benefit.

Housebound benefits. Vets who get a military pension and are substantially confined to their immediate premises because of permanent disability can apply for a monthly pension supplement.

Program of Comprehensive Assistance for Family Caregivers. This program gives a monthly stipend to a vet’s family members who serve as caregivers who need assistance with everyday activities because of a traumatic injury sustained in the line of duty on or after Sept. 11, 2001.

Other caregiver benefits through the program include the following:

Access to health insurance and mental health services, including counseling
Comprehensive training
Lodging and travel expenses incurred when accompanying vets going through care; and
Up to 30 days of respite care per year.

Payment by a family member. If the person requiring assistance is mentally sound and has sufficient financial resources, that person can pay a family member for the same services a professional home health care worker would provide.

Reference: AARP (May 15, 2021) “Can I Get Paid to Be a Caregiver for a Family Member?”

When do Medicaid Recipients have to Cash Stimulus Checks before Government Collects?

Medicaid enrollees are generally allowed to have only a limited amount of assets, outside of their primary residence, car and other essentials.

For singles, it’s typically about $2,000. Those who exceed that threshold could be deemed ineligible for the health insurance program for low-income Americans.

CNN’s recent article entitled “Nursing home residents have a little more time to spend stimulus checks before losing Medicaid” notes that the $1,200 stimulus payments that many people received last spring didn’t count as income under Medicaid rules.

As a result, nursing home residents didn’t have to give the money over to the facilities where they live and could save it for their own use.

However, the funds are considered an asset after one year. That is a deadline that is rapidly drawing near for the first of the three relief payments Congress has authorized since the pandemic began.

Even so, another coronavirus provision that lawmakers approved last March prevents states from disenrolling residents from Medicaid during the public health emergency, which is currently set to end next month. However, it’s expected to be extended again.

This means that Medicaid recipients, including nursing home residents, don’t have to worry about spending the funds until the pandemic is over.

The same is true for the $600 checks many received from the December relief bill and the $1,400 payment that is being distributed from President Biden’s $1.9 trillion recovery package, but the time on those funds started more recently.

Just the same, people shouldn’t wait until the last minute to spend their stimulus funds. They can buy things they need and can also give the money to family or friends or make a charitable contribution. They just need to prove that the gift isn’t part of a strategy to give away assets to qualify for Medicaid.

“People should just be conscious of Medicaid asset limits and deal with it without trying to wait until the last month of the public health emergency,” said Eric Carlson, a directing attorney with Justice in Aging, a non-profit legal advocacy group. “There’s no particular benefit to cutting it close.”

Reference: CNN (March 30, 2021) “Nursing home residents have a little more time to spend stimulus checks before losing Medicaid”

Tips for Caregiving during the Pandemic

The Harvard Health Letter provides some great tips in its recent article entitled “Caregiving during the pandemic” to make certain that a loved one is receiving the best care.

Direct Communication. If your elderly family member can communicate well, talk to them daily and remember that when you ask basic questions like “How are you feeling?” “Are you eating and drinking enough?” “Are you getting enough sleep?” However, that you may not get a straight answer. They may just tell you what you want to hear. Therefore, try to get a more realistic picture. Listen to how they sound on the call, and see if they sound different, sad, confused, or tired. Ask them how they’ve been spending their time and who they’ve seen that day. Look for clues that they may be getting sick.

Speak with The Staff. Ask questions. Start with the director of nursing or a caseworker. You can tell the staff you’re worried and that you may be asking more questions than usual. Find out how often they’re able to give you updates and have a list of questions that includes the following aspects of your loved one’s health and well-being.

Socialization. Ask if your family member is participating in activities or just staying in their room most of the time. If they’re not getting out, ask about a plan to get them back into a healthy social and physical routine.
Does the staff feel your senior is in generally good spirits, or is there an issue? Is this impacting their health or daily activities?
Physical Strength. Is your parent having difficulty rising from a chair or feeling unsteady when walking? Inactivity can diminish muscle strength and cause falls. Get them into an exercise routine or physical therapy.
Eating Habits. Are they eating and drinking enough, and what is the staff doing to encourage nutrition and hydration? A change in eating and drinking habits can mean a change in mood and should be addressed by a doctor.
Have any medications been added or eliminated recently, and for what reason?
Continence. Ask if your senior is able to get to the bathroom on time. If they’re incontinent, what’s the plan to deal with this issue?
Hygiene. Is your elderly loved one is able to bathe, brush his or her teeth and do other bathroom activities? If not, ask how often the staff is providing assistance.
Cognitive Skills. Ask if there’s been any change in your loved one’s ability to reason or have a conversation. In some cases, it might be linked to something fixable, like medication side effects or a urinary tract infection.

If You Find an Issue. Inform the staff about your concerns, especially if you suspect a new problem. Arrange a visit with a physician and try to be on the call if possible.

Social interaction is also important, so encourage loved ones to take part in activities at their facility. In the same fashion, try to connect with your loved one in any way possible. Make frequent visits if they’re allowed, drop off a care package, a card, flowers, or a picture from a grandchild. This is the best way to stave off feelings of isolation and loneliness that so many people in facilities experience.

Reference: Harvard Health Letter (March 2021) “Caregiving during the pandemic”

States with Most Affordable Long-Term Care?

Seven in 10 people 65 and older will require some type of long-term care during their lifetime. This expense will vary based on the patient’s required level of care, care setting and geographic location, says Think Advisor’s recent article entitled “15 Cheapest States for Long-Term Care: 2020.”

A recent study by Genworth found that the cost for facility and in-home care services increased on average from 1.9% to 3.8% per year from 2004 to 2020. That amounts to $797 annually for home care and as much as $2,542 annually for a private room in a nursing home.

At the current rate, some care costs are more than the 1.8% U.S. inflation rate, Genworth said.

These findings were taken from 14,326 surveys completed this summer by long-term care providers at nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey encompassed 435 regions based on the 384 U.S. Metropolitan Statistical Areas, as defined by the U.S. Office of Management and Budget.

In a follow-up study, Genworth also found that these factors are contributing to rate increases for long-term care:

Labor shortages
Personal protective equipment (PPE) costs
Regulatory changes, such as updated CDC guidelines
Employee recruitment and retention issues
Wages demands; and
Supply and demand.

Here are the 15 cheapest states for long-term care, according to Genworth with their average annual cost:

15. Utah: $59,704

14. Kansas: $57,766

13. Iowa: $57,735

12. Kentucky: $57,540

11. South Carolina: $57,413

10. Tennessee: $56,664

9. North Carolina: $56,512

8. Georgia: $53,708

7. Mississippi: $52,461

6. Arkansas: $50,835

5. Oklahoma: $50,641

4. Texas: $48,987

3. Missouri: $48,753

2. Alabama: $48,240

1. Louisiana: $44,811

Reference: Think Advisor (Dec. 14, 2020) “15 Cheapest States for Long-Term Care: 2020”

What’s the Key to Saving Money in Retirement?

Of the many expenses for retirees, healthcare can be one of the biggest. There are Medicare premiums and prescription drugs. These healthcare expenses can take up a large part of your retirement savings. Some projections say that the average 65-year-old man today will spend $189,687 on healthcare expenses in retirement, and a typical 65-year-old woman will spend $214,565. These figures don’t include long-term care, such as nursing home expenses.

Motley Fool’s recent entitled “How to Save Money on Healthcare in Retirement” explains that there are steps you can take to decrease your healthcare costs in retirement. Let’s look at a few ways to save money, when you’re limited to a fixed income.

Use Medicare’s free preventive services. Medicare eligibility starts at age 65. Once enrolled, you have access to many no-cost benefits aimed at helping you stay healthy. However, many seniors don’t take advantage of these services and lose an opportunity to get ahead of health issues. Medicare enrollees get a free wellness visit with a doctor every year, and scheduling that could help avoid a separate bill later. Many critical health screenings are also free under Medicare, including mammograms and certain cancer screenings, diabetes testing and depression screenings. Taking advantage of these free services is a great way to keep your health in the best possible shape, which will lower your overall healthcare costs.
Nip health issues in the bud. Small health issues can become big ones, if left unattended. An easy way to save money on healthcare in retirement, is to address medical issues before they get worse.
Look at a Medicare Advantage Plan. One reason why healthcare is so expensive in retirement, is that many essential services aren’t covered under traditional Medicare, like dental care, vision services and hearing aids. If you opt for a Medicare Advantage plan, however, you might save money on these and other critical services. Medicare Advantage typically provides a wider range of benefits, and in some cases, you could wind up paying less for Medicare Advantage than traditional Medicare—with that improved coverage. Medicare Advantage can also save you money, by decreasing your out-of-pocket spending. Most of these plans put a cap on that figure, but traditional Medicare has no limits on your yearly costs.
Compare the Best Prescription Drug Plan. If you take prescription drugs, you need to find a cost-effective plan. If you’re enrolled in traditional Medicare, you’ll need a separate Part D plan to cover your drug costs. However, not all plans are the same. Do some comparison shopping to see which plans offer the best deals, based on the medications you’re taking.
Purchase Long-Term Care Insurance. At least 70% of seniors age 65 and over will require some type of long-term care in their lifetime. That’s why long-term care insurance is needed. The younger you are when you apply, the more likely you’re going to get approved and get the best rates.

Saving money on healthcare in retirement will let your nest egg last longer and buy you more freedom to enjoy your golden years. Learn about healthcare costs, so you’re ready to lower your expenses and avoid the financial stress that so many of today’s seniors face.

Reference: Motley Fool (May 19, 2020) “How to Save Money on Healthcare in Retirement”

What Does Research Say about Senior Well-Being and Living Space Design?

Design’s Impact on Seniors’ Perceptions of Wellness from New York-based architecture firm Perkins Eastman, reviewed the responses of 540 older adults living in three West Coast senior living communities to see how they looked at their own physical, social/emotional and intellectual wellness.

McKnight’s Senior Living’s recent article entitled “90% of senior living residents say design integral to well-being: study” explains that the study started many years before the impact of COVID-19 on the senior living sector. It included responses from residents living in three life plan communities, also known as continuing care retirement communities: MonteCedro in Altadena, CA; Spring Lake Village in Santa Rosa, CA; and Rockwood Retirement Communities in Spokane, WA. The three communities were chosen due to their focus on whole-person wellness and specific design strategies to support that objective.

The residents of these communities completed questionnaires between 2015 and 2017 at certain points of pre-construction, post-construction, and occupancy. The study looked at these wellness strategies used by designers:

Autonomy, control and choice
Design in variety
Promotion of use through location and access
Patterns of movement
Natural connections
Touch of serendipity
Degrees of privacy
Layers of light
Sensory experiences; and
Feelings of home.

The results showed that more than 90% felt that design strategies used in their communities were essential to their overall well-being. Research showed that residents’ perceptions of wellness positively increased or held steady after they began using new or renovated spaces in their communities. The aspects that exhibited the most improvement in physical wellness in all communities was access to physical wellness resources and exercising regularly. In addition, social/emotional wellness, access to resources, a strong support system, and a sense of connection and belonging also improved across all three communities.

The residents’ access to intellectual wellness resources were seen as better, and there were more opportunities for residents to expand their knowledge and explore the creative arts.

The authors of the study said the design strategies in the study should be a “starting point” upon which designers and providers can expand, while developing more strategies and approaches to support “whole-person wellness”.

Reference: McKnight’s Senior Living (Sep. 8, 2020) “90% of senior living residents say design integral to well-being: study”

Does the Netherlands have the Right Idea for Elder Care?

Is the Netherlands getting its money’s worth from its spending, and are they protecting elders from the impoverishing effects of out-of-pocket spending, and their children from the burdens of caregiving?

Forbes’ recent article entitled “Can The Dutch Example Help Us Improve Long-Term Care And Manage Its Costs? Maybe” says that when investigating further, it’s not hard to find articles praising the Dutch approach to eldercare. Its “Dementia Village” has received a lot of press for its patient-friendly approach of creating a secure, “Truman Show”-style community where seniors can spend time at the town square or shopping at the grocery store. They also live in individual homes styled in the manner of their youth.

An expert on eldercare at Access Health International described her experiences in a visit to the country. She said that the organizations she visited focused on well-being, wellness and lifestyle choices. They focused less on the medical aspects of chronic and long-term care. The groups didn’t consider themselves to be part of the curative branch of the healthcare system—these healthcare professionals only focused on patients’ individual capabilities, freedom, autonomy and wellness.

The article took a look at the FICA-equivalent taxes in the Netherlands with data from the Social Security Programs Throughout the World, at the Social Security website. For old age, disability and survivor’s benefits (the U.S. Social Security-equivalent), the Dutch contribute 20% of their pay, to a max of $37,700. Employers pay 6.27% of pay, up to $60,600. For medical, the system is a hybrid one. The workers buy private insurance. Employers pay 6.90% of covered payroll (with no limit), and the government subsidizes the benefits. As far as long-term care, workers pay 9.65% of earnings up to $37,700.

A World Bank consultant gave a more detailed review of the Dutch system in a 2017 paper entitled, Aging and Long-Term Care Systems: A Review of Finance and Governance Arrangements in Europe, North America and Asia-Pacific.

The first social insurance benefit for long-term care, the Exceptional Medical Expenses Act was implemented in 1968. In 2014, 5% of Dutch people received benefits through the program, but the cost of the system had increased. At first, the Dutch government initially tried to control costs with budget caps, until a 1999 ruling outlawed these. As a result, costs grew from EUR 15.9 billion in 2001 to EUR 27.8 in 2014, even though there were cost-control efforts, like increases in copays required from middle- and upper-income families and tightening of eligibility criteria.

In 2015, the Dutch government totally overhauled its system with the Long-term Care Act. This law had a new administrative structure, changes so government pays for more services, more home support instead of nursing homes when possible, and other cuts and freezes in reimbursement rates.

As a consequence, the English-language site Dutch News reported in 2017 that “At least 40% of Dutch nursing homes and home nursing organizations are making a loss and overall profitability across the healthcare sector has more than halved, according to accountancy group EY,” as reimbursement rates drop and (since the less-frail elderly are more often being cared for at home) nursing home residents need more help.

Elder care isn’t free of charge, but the rates are based on income and, at a maximum, are still much lower than American private-pay nursing home or home care costs ($2,500/month). Therefore, copayments by families are 8.7% of total spending. Thus, taxes are higher, but the direct out-of-pocket costs of care in the Netherlands are substantially lower than in the U.S.

The Netherlands’ systematized provision of home care and attempts to provide home-like nursing homes are appealing. However, it’s still not known if the country’s 2015 reform will control costs to ensure its programs are sustainable in the long run. Further, the fact that this reform was required supports the notion that an expansive government program isn’t as simple as its proponents would like it to be.

Reference: Forbes (Sep. 1, 2020) “Can The Dutch Example Help Us Improve Long-Term Care And Manage Its Costs? Maybe.”

Estate Planning Blog Articles

Estate & Business Planning Law Firm Serving the Providence & Cranston, RI Areas

How Do I Hire an Elder Law Attorney?

What Happens to My Home If I Go to a Nursing Home?

What Is Elder Law?

Can I Be Paid for Caring for a Loved One?

When do Medicaid Recipients have to Cash Stimulus Checks before Government Collects?

Tips for Caregiving during the Pandemic

States with Most Affordable Long-Term Care?

What’s the Key to Saving Money in Retirement?

What Does Research Say about Senior Well-Being and Living Space Design?

Does the Netherlands have the Right Idea for Elder Care?

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How Do I Hire an Elder Law Attorney?

What Happens to My Home If I Go to a Nursing Home?

What Is Elder Law?

Can I Be Paid for Caring for a Loved One?

When do Medicaid Recipients have to Cash Stimulus Checks before Government Collects?

Tips for Caregiving during the Pandemic

States with Most Affordable Long-Term Care?

What’s the Key to Saving Money in Retirement?

What Does Research Say about Senior Well-Being and Living Space Design?

Does the Netherlands have the Right Idea for Elder Care?

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