I. Introduction

This is an introduction to elder law for you to read before our first meeting. It will give you an overview of what is special about elder law planning. It should also help to make our interview more efficient. Any questions that you have as you read, you can note on the last page. I will be happy to answer them for you when we meet.

Elder law's unique focus is on lifetime health care planning. It is an ever-changing field, governed by federal and state laws and regulations as well as rules of local agencies. The field is particularly attuned to the vulnerability of older adults and new protective ideas are incorporated into planning approaches and documents as they evolve. Elder law attorneys from around the Country daily share developments and ideas for computer.

II. Crisis Prevention

Clients often call me when they are facing a crisis: A parent with a stroke; a debilitated spouse; a demented sister or brother. But, elder law functions best when it's engaged before a crisis. Elder law aims at crisis prevention.

For example, the backbone documents of an elder law practice are Health Care Proxies, Living Wills, Durable Powers of Attorney and Living Trusts. With some or all of these documents in place, client who is suddenly incapacitated can be cared for by a legal agent whom he or she personally selected. There is no need for court intervention for the appointment of a guardian.

III. Long Term Care Planning

I urge all of my clients to execute Health Care Proxies (for which there is no charge) and recommend the most current version of my Durable Power of Attorney, as minimum protection. When spouses are alive and are the primary beneficiaries of each others Wills, I often recommend a re-formulation of the Wills to provide protection for the inheritance, should the surviving spouse be disabled at the time of the partner's death. Similarly, when assets are transferred for estate planning or Medicaid planning purposes, I routinely recommend a revision of the beneficiary's Will to protect the planner, in the event of the possible premature death of the beneficiary.

For clients seeking a long term care plan, we review current and anticipated health and finances, family structure, relationships, and personal goals. Several alternative planning method are available to consider, including Self-financing, long term care insurance and Medicaid. If clients are not able to self- insure and not medically eligible for long term care insurance by the time we meet, however, Medicaid planning can be the best available means of preserving savings for themselves, spouses or children.

A. Medicaid Overview
Medicaid has been a middle class program since 1988 when Congress acknowledged the widespread, bankrupting costs associated with long term care and passed legislation to protect married couples from destitution. Accordingly, in New York, some non-applicant spouses, in 2011, can retain exempt liquid resources of over $109,000 and exempt income of approximately $2,700 per month. An applicant, by contrast, can retain exempt liquid resources of $13,800 and exempt income of less than $800 per month. A home, with equity of up to $750,000 is also exempt, spouses may transfer assets freely between themselves, in order to allow applicant spouse to qualify for benefits.

All non-institutionalized Medicaid beneficiaries, married and unmarried, are entitled to retain a private home with equity of up to $750,000, a car, a $1,500 'burial fund' and certain business property. Medicaid also authorizes the retention of pre-need, irrevocable 'burial trusts,' established with a funeral home, which allow for protection of most reasonable funeral and burial expenses for not only the applicant but a spouse and immediate family members.

B. Medicaid planning
Medicaid planning is accomplished by a variety of legal methods, combining specialized Medicaid techniques with traditional estate planning. Clients who are properly advised qualify for Medicaid benefits without spending all their savings. Although Medicaid qualification requires ownership of limited liquid resources, carefully planned transfers of assets permit the preservation of greater amounts for later use for both applicant and family. Protected funds are often later used for the applicant for a variety of uses, such as nursing home companions, “bed holds” during periods of hospitalization and specialized physicians who are not covered by Medicaid.

download personal and financial medicaid worksheet pdf | download personal and financial medicaid worksheet word document

C. Supplemental Needs Trusts

D. Ethical Concerns
For those with questions about the ethics of Medicaid planning, the State’s Highest Court provided impassioned support. Contradicting the State's objections to Medicaid planning. The Court wrote in one, long, sympathetic sentence.

[N]o agency of the government has any right to complain about the fact that middle class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential medical treatment.

Nursing homes in New York commonly charge $160,000 per year and only the wealthiest can afford them without financial collapses.