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 law and regulations as well as various rules local agencies. Elder law attorneys from around the Country daily share developments and ideas by computer. 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.

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 is aimed 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, an incapacitated client can be cared for by the legal agent whom he or she personally selected, without the need for court intervention or 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 recipient's will to protect the planner, in the event of the possible premature death of the recipient.

For clients seeking a long term care plan, we review current and anticipated health and finances, family structure, relationships, and personal goals. Self-financing, long term care insurance and Medicaid planning are all alternatives to consider. 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, in 2003, a non-applicant spouse can retain exempt liquid resources in excess of $90,000 and exempt income exceeding $2,200 per month. An applicant, by contrast, may retain exempt liquid resources of less than $4,000 and exempt income of about $650 per month, with limited other exemptions. Couples may transfer assets freely between themselves, however, in order to allow the applicant spouse to qualify for benefits.

All non-institutionalized Medicaid beneficiaries, married and unmarried, are entitled to retain a private home, a car, a $1,500 'burial fund' and certain business property. More recently Medicaid authorized the retention of pre-need, irrevocable 'burial trusts,' established with a funeral home, which allow for protection of all reasonable funeral and burial expenses for an applicant, 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 routinely qualify for Medicaid benefits without spending their savings down to the eligibility level. Although Medicaid qualification requires ownership of limited liquid resources, planned transfers of assets to exempt and non-exempt parties permits the preservation of greater amounts for later use for both applicant and family.

When non-exempt transfers are necessary, often from a parent to an adult child or other close relative, they cause a delay in eligibility for nursing home Medicaid only. Remarkably, transfers do not affect eligibility for home care Medicaid.

The technique of transferring assets to qualify for Medicaid is completely within the law. Ineligibility periods – often called 'penalty periods' – for nursing home Medicaid are the exchange, the quid pro quo for the transfer of assets. The length of the ineligibility period is proportional to the amount transferred. Whether a transfer affects eligibility at the time of the the nursing home Medicaid application depends upon the amount transferred and how long before the application the transfer took place. Contrary to common misconception, the ineligibility period created by transfers is not a fixed period of three years and does not start at the time of application.

C. Ethical Concerns
For those with questions about the ethics of medicaid planning, New York'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.

IV. Personal Goals

Your personal circumstances and goals are critical to developing the best plan for you. Although the documentation listed below is necessary to the technical work, your personal feelings about your family and your assets will drive the overall plan. Take some time in advance of our meeting to think about some of the details which are important to you.

V. Specific Information for Our Meeting

Whatever planning we do, including planning for a guardianship, will require both medical and financial information. If you can assemble some of the basic data needed and have it organized in categories, we will be able to move quickly through the details.

A. Medical Data
Please provide me with basic medical histories and diagnoses of the relevant party or parties. Whether we are planning for a married individual or a couple, we will need information about both individuals. A list of current medications and copies of recent medical or discharge records can be useful.

B. Financial Documents
I will need documentation of all income, from all sources. Tax returns provide the best starting point. I will further need to know all assets, including bank accounts, securities, life insurance, co-ops, houses, other real estate, boats, and cars. It will be important to know current balances/ value and exactly how the title reads on each resource, so please bring copies of the ownership documents if possible. Two or three years of checkbook ledgers can be invaluable as references for expenses and general financial history.

C. Family and Other Important Relationships
It will be helpful to have access to a personal telephone book with relevant addresses and telephone numbers of family members and consultants. For estate planning, I will need a family tree starting with the parents of the person or persons for whom we are planning.

For all planning purposes, we will need to know your preferences for agents you wish to name on heath care proxies and powers of attorney. If we are to be doing estate planning, you will also need a list of your intended beneficiaries and executor or executrix. Consider too who you will want to serve, if your first choices are unavailable

D. Current Documents
Please also bring with you copies of: prior wills, living trusts, trusts of which you are a beneficiary, health care proxies, living wills and powers of attorney. If a currently disabled person is to receive a gift from you, it would be useful to have a copy of the certification of disability.

VI. My Office

Number 100 Park Avenue is located between 40th and 41st Streets. The closest subway stop is “Grand Central Station,” at 42nd Street and Lexington Avenue with an exit directly opposite Park Avenue. The # 4,5,6, 7 and “S” trains all stop there.

If you need a garage, “Quik Park” is nearby on East 40th Street between Park and Lexington Avenues. A large “Park” sign greets you on the left (north) side of the street, half way down the block.

 

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