- 6 Things an Elder Law Attorney Can Do to Help Family Caregivers
- Top 6 Ways an Elder Law Attorney Can Help Family Caregivers
- 1. Advise what is best for the client
- 2. Develop a plan for long-term care
- 3. Ensure that a durable power of attorney is in place
- 4. Help with accessing Medicaid
- 5. Protect assets from financial exploitation
- 6. Provide accurate answers
- Ways to Choose an Elder Law Attorney
- Elder Care Attorneys, Medicaid Lawyers and the Medicaid Planning Process
- What Medicaid Attorneys Do?
- Medicaid Application Assistance
- Assist in Meeting Income and Asset Limits
- Implement Strategies for Protecting Income and Assets
- Maximizing Income and Assets for a Healthy Spouse
- What Medicaid Attorneys Don’t Do?
- Is Medicaid Planning Legal?
- Is a Lawyer Needed to get Medicaid?
- Cost of Elder Law Attorneys and Medicaid Planning
- What Does An Elder Law Attorney Do? | Updated for 2021
- Estate Planning
- Long-term Care
- Employment Discrimination
- Elder Abuse Or Fraud
- Grandparents Visitation Rights
6 Things an Elder Law Attorney Can Do to Help Family Caregivers
If you’re a caregiver for a parent, spouse or senior loved one, an elder law attorney can help you and your family navigate the legal landscape of aging.
Learn more from this list of six things that an elder law attorney can do to help family caregivers.
Top 6 Ways an Elder Law Attorney Can Help Family Caregivers
Elder law attorneys work primarily with seniors, taking a holistic approach to legal issues that people commonly face as they age, especially with health, housing, financial well-being and long-term care.
However, an elder law attorney can also help family caregivers explore options for their loved one’s current situation and explain how to plan for what could happen down the road, especially when a debilitating illness may necessitate long-term care.
According to the National Academy of Elder Law Attorneys, elder law encompasses many fields of law, with elder law attorneys specializing in numerous areas, which can include:
- Administration and management of estates and trusts
- Elder abuse and fraud
- Estate planning, probate, trusts, wills and other financial documents
- Long-term care placements in life care communities and nursing homes
- Medicare and social security appeals and claims
- Preservation/transfer of assets to avoid spousal impoverishment when a spouse enters a nursing home
Whether you’re trying to figure out a current long-term care situation or plan for a possible future scenario, here are six things an elder law attorney can do to help family caregivers:
1. Advise what is best for the client
Families are frequently split on the type of care they want for their parents, says Patrick Simasko, a certified elder law attorney in Mount Clemens, Michigan. However, an elder law attorney can advise what is best without emotions influencing decisions.
“Every parent wants to stay in the home, but sometimes… that’s not the best advice,” says Simasko. “First and foremost, the attorney has to recommend what strategies to implement to ensure that the aging loved one is protected.”
2. Develop a plan for long-term care
Because an elder law attorney sees nearly every type of financial and medical situation that seniors and their families may encounter, he or she has a good idea of what may lie ahead, especially with diseases Alzheimer’s and dementia or chronic illnesses.
Elder law attorneys focus on problems and issues that families face as parents or spouses age, says Anthony J. Enea, a certified elder law attorney in White Plains, New York.
“An elder law attorney goes over what kind of care is required and whether the person is able to stay at home or may need long-term care in a nursing home,” says Enea.
“Then we look at steps to protect assets in case of long-term care.”
3. Ensure that a durable power of attorney is in place
If there is no durable power attorney in place to allow an appointed person to make financial or decisions about your loved one if he or she becomes incapacitated, an elder law attorney can work with you and your loved one to prepare the documents.
If the person is already incapacitated and has no durable powers of attorney, an elder law attorney can commence guardianship proceedings to allow you or another guardian to handle your loved one’s financial and personal affairs.
4. Help with accessing Medicaid
A certified elder law attorney is typically familiar with Medicaid and can assist you and your loved one on how to become eligible and apply for benefits.
Elder law attorneys can also provide information about veteran’s benefits and additional government resources.
5. Protect assets from financial exploitation
Elder law attorneys can identify and alert family members to financial exploitation they might otherwise have missed. When Dad and Mom slow down or their health declines, that gives a bad neighbor the opportunity to come over and start ‘helping out’ or an unscrupulous adult child to obtain access to financial accounts, says Simasko.
“Protecting their assets from dishonest predators is essential,” Simasko says. “An elder law attorney can report potential criminal activity or fraud to stop it or advise the children,” Simasko says.
6. Provide accurate answers
An elder law attorney provides accurate answers to questions family caregivers have when a loved one who needs help, says Simasko.
“The family has already gotten hundreds of answers from attorneys, financial advisors, family and friends,” says Simasko. “The elder law attorney has to listen to the situation and give the advice that is best for the client. Not [necessarily] the advice they want to hear, but what’s best, given the situation.”
Ways to Choose an Elder Law Attorney
Not everyone professing to be an elder law attorney has the requisite experience and knowledge to advise aging clients.
However, a certified elder law attorney (CELA) must have practiced elder law for a certain number of hours each week for a specific number of years and participated in a required number of hours of continuing education, according to the National Elder Law Foundation (NELF).
Search the National Elder Law Foundation or the NAELA to find a certified elder law attorney in your city or state. You can also visit the NAELA for more information about elder law attorneys.
What has an elder law attorney done to help you and your family? We’d to hear more about your experiences in the comments below.
Elder Care Attorneys, Medicaid Lawyers and the Medicaid Planning Process
Elder law attorneys, also called elder care attorneys, estate and trust attorneys, or Medicaid lawyers, assist persons in preparing for long-term care and death.
They assist seniors in a large and diverse array of legal tasks, which encompasses retirement planning, estate planning, creating wills and durable power of attorney, preparing for long-term care, appointing guardianship, creating trusts, and in some cases, Medicaid planning and appeals.
Not all elder law attorneys provide Medicaid planning services and not all Medicaid planners are elder law attorneys. It is important to find a lawyer or non-attorney, professional Medicaid planner that specializes in this area and is familiar with state law.
What Medicaid Attorneys Do?
Medicaid attorneys play a large role in both the Medicaid application process, as well as planning for Medicaid eligibility.
Medicaid Application Assistance
Medicaid lawyers, first and foremost, are able to assist Medicaid applicants with the application process, such as filling out the paperwork, providing supporting documentation, and filing the application.
While this process can be labor intensive and complicated, in most states it is not required that the person providing assistance be an attorney.
For this task, a professional Medicaid planner might be better suited, as it is generally more affordable than hiring an attorney. Learn about the various types of Medicaid planners here.
Assist in Meeting Income and Asset Limits
Applying for Medicaid becomes more complicated when an applicant is over Medicaid’s income and / or asset limit(s). All states set financial eligibility requirements, limiting the amount of income and assets that an applicant can have to be eligible for Medicaid.
To see the eligibility requirements for the state in which you or your loved one resides, click here. Being over the income and / or asset limit(s) does not mean that one cannot become eligible for Medicaid.
However, planning techniques to lower one’s countable income and / or assets are required, which is where a Medicaid attorney or Specialist Medicaid Planner becomes invaluable.
Advanced Planning, While Ideal, Is Not Required
Medicaid planning is best done well in advance of the need for care, particularly if one has assets valued over $50,000. This is because Medicaid has a look back period. During this period, an applicant cannot gift assets or sell assets for less than market value in an attempt to meet Medicaid’s asset limit. The look back period is 5 years in all states except California (Medi-Cal has a 2.5 year look back). Violating the look back period can result in a penalty of Medicaid ineligibility for the applicant.
Implement Strategies for Protecting Income and Assets
Executing planning techniques for Medicaid eligibility with the intention of missing the look back period is ideal for healthy seniors. One such strategy that elder law attorneys can implement is a Medicaid asset protection trust (MAPT).
This type of trust not only prevents one from becoming ineligible for Medicaid due to gifting assets (if done prior to the look back period), but it also allows one to protect assets for spouses to ensure they can live independently.
Furthermore, MAPTs protect assets, including one’s home, for relatives upon the death of the Medicaid recipient, as assets in this type of trust are protected from Medicaid’s estate recovery program.
This means that the state cannot attempt to be reimbursed for long term care costs for which it paid for the Medicaid beneficiary via these assets.
Another planning strategy, which is not implemented with the intention of missing the look back period, is the Modern Half a Loaf. This strategy reduces one’s countable assets, while at the same time, protecting some of them for family.
Essentially, Medicaid applicants gift approximately half of their “excess” assets (assets over Medicaid’s limit) to their loved ones and then purchase an annuity with the remaining “excess” assets. (An annuity turns countable assets into an income stream).
While the applicant will be penalized for violating the look back period, the income from the annuity can pay for the cost of long term care during the penalty period.
Medicaid attorneys and specialists also assist with crisis planning, which occurs when a senior needs Medicaid benefits within 30-60 days. An option to meet the income limit in this case is a Miller Trust, often referred to as a Qualified Income Trust (QIT).
In oversimplified language, income that is over Medicaid’s income limit is put into an irrevocable (meaning it cannot be changed or cancelled) trust to be used for very specific purposes. For instance, the medical and long-term care costs of the Medicaid recipient.
The income that is put into the QIT does not count towards Medicaid’s income limit. Please note that not all states allow QITs.
Maximizing Income and Assets for a Healthy Spouse
For married couples in which just one spouse is applying for nursing home Medicaid or a home and community based services Medicaid waiver, there are spousal impoverishment rules in place. These are intended to prevent the healthy spouse, also called a well spouse or community spouse, from having too little from which to live.
Medicaid attorneys help married couples to maximize the community spouse resource allowance (the amount of assets the non-Medicaid applicant spouse is able to retain of the couples’ joint assets) and the monthly maintenance needs allowance (monthly income that can be transferred from the applicant spouse to the non-applicant spouse).
What Medicaid Attorneys Don’t Do?
Above, we discussed what tasks Medicaid attorneys do in regards to Medicaid planning, but it is also important to cover the tasks that they don’t usually do.
One planning strategy that is used to lower one’s countable assets is to purchase an immediate annuity with an insurance company. An annuity takes a lump sum of cash and converts it into an income stream, generally for an applicant’s non-applicant spouse.
In order to sell annuities, one must have a license to sell insurance, and in most cases, Medicaid attorneys are not also licensed insurance sales persons.
In addition, Medicaid attorneys generally do not sell irrevocable funeral expense trusts. However, they can do so through a partnership with a licensed insurance sales agent. This type of trust is a legal contract between the Medicaid recipient and an insurance company.
It provides a way for one to “spend down” extra assets, while also setting money aside for future funeral / burial costs.
Stated differently, as long as the amount of the funeral trust is under the limit for the state in which the Medicaid recipient lives, it is not counted towards Medicaid’s asset limit.
Is Medicaid Planning Legal?
Yes, Medicaid planning is legal in all 50 states. However, who can provide Medicaid planning assistance depends on the state and what types of planning services are offered.
According to federal rules, Medicaid applicants are able to receive assistance filing Medicaid applications from anyone they choose, as well as hire anyone they choose to represent them in the case of an appeal for denial of benefits.
However, it is illegal for persons who are not attorneys to practice law, which can be a grey area. This is because the definition of the practice of law can vary the state in which one resides.
Are there states that prohibit non-attorneys from doing Medicaid planning? At the time of this writing, there are five states that prohibit non-attorneys from doing some Medicaid planning services.
In these states for these specific services, non-attorney, Medicaid specialists often partner with attorneys to provide services.
These states are Florida and Texas and to a lesser extent, New Jersey, Ohio, and Tennessee.
Is a Lawyer Needed to get Medicaid?
The short and simple answer is no, a lawyer is not needed to get Medicaid. However, one’s marital status, financial holdings, and complexity of other relevant factors, it may be best to hire an attorney who specializes in Medicaid in the state in which one resides.
Also, as covered above, it is illegal for non-attorneys to do some aspects of Medicaid planning in several states.
For persons who have Medicaid cases that are fairly simple and straightforward, a Medicaid planner, also called a Medicaid specialist or a Medicaid Advisor, might be a good option.
Working with a professional Medicaid planner can be a lot more cost efficient than working with a Medicaid attorney.
In addition, Medicaid planners might be better suited for certain tasks, such as providing assistance with filling out the application, gathering supportive documentation, submitting and following up on the application process, and saving money for the Medicaid applicant or the Medicaid applicant’s healthy spouse.
This is because these tasks are generally the focal point for Medicaid planners. On the other hand, Medicaid attorneys often focus more on the legal aspects of Medicaid planning, such as creating Medicaid asset protection trusts or Qualified income trusts, which makes them the better option for this type of assistance.
To find a professional Medicaid planner in your area, click here.
Cost of Elder Law Attorneys and Medicaid Planning
There isn’t a clear-cut answer as to the cost of hiring an elder care attorney for Medicaid planning purposes. Some Medicaid lawyers offer free consultations, while others charge an initial consultation fee or offer Medicaid planning conferences that range in cost from approximately $175 – $500.
After the consultation / planning conference and gathering of the facts and needs, a price for services can be quoted. Medicaid planning fees can range from $3,000 to $12,000.The following factors can all impact the cost the cost of a Medicaid planning engagement.
The more complicated the case, the higher the fees.
- If the Medicaid applicant is single or married
- Ages and health of spouses and children
- Amount and types of assets and what is involved in the reconfiguration of income and / or assets to meet the limit(s)
- Urgency for the need for Medicaid
- Whether assets have been gifted in the past
- If estate and incapacity planning documents need to be completed
- If and when pre-planning has been done
The costs of hiring an elder law attorney or Medicaid planning specialist might seem high in the short-term, but in the long-term, seeking assistance can protect many assets that would otherwise not be protected. Therefore, a Medicaid expert, whether an attorney or not, can save a Medicaid applicant and his / her family a lot of money and can be a very wise investment.
What Does An Elder Law Attorney Do? | Updated for 2021
Most areas of the law focus on a specific discipline, and elder law attorneys focus on a specific type of person. The main purpose of an elder law attorney is to help aging Americans to legally navigate through the issues of life that arise simply because of age.
They can offer legal guidance and counseling on preparing for long-term care, choosing retirement plans, planning and settling your estate and a host of other issues that older Americans may face. As we enter retirement age, there are government benefits that may be available to us, but determining if you qualify for the federal programs can be difficult to do alone.
Elder law attorneys are knowledgeable in all areas of government assistance available to seniors.
At some point in our life, chances are good we will need the help of an attorney. As we age and begin planning for our retirement future, and ultimately, our death, seeking counsel from an elder law attorney can be beneficial. Attorneys who practice elder law are knowledgeable in several areas that directly affect senior citizens.
It doesn’t matter if you have a small house and a modest bank account or a lucrative business and a long list of assets, estate planning can be difficult and overwhelming.
But it’s important to put your affairs in order, especially as you age.
It’s sobering to think about, but we will all die, and estate planning can help us be in control of what happens to our assets when that time comes.
An estate plan is more than creating a will. A will is just the first step in executing your estate plan.
It can entail creating trusts for your life insurance policies (maybe link to the life insurance policy guide article?) or other assets, filling out and executing Advance Directives (Maybe link to Advance Directives article?), guardianship decisions if you become incapacitated, financial management of 401ks and IRAs, and overall management of your personal business during your life, as well as settling your estate upon the time of your death. Many elder law attorneys specialize in estate planning and can help you navigate through the decisions and the tax implications of managing and settling your estate.
An elder law attorney can help ensure that you get the proper amount of benefits your condition.
You can qualify and apply for Social Security benefits when you are 61 and nine months old. Currently, the full retirement age for Social Security is 67. If you receive disability benefits before that age or become disabled once you reach full retirement age, an elder law attorney can help ensure that you get the proper amount of benefits your condition.
Medicare is the federal health insurance program for Americans 65 and older. It’s a great benefit the government provides, but it is complicated and confusing, especially when you are enrolling for the first time. Medicare Part A covers any stay you may have in a hospital, skilled nursing facility or hospice care. It also covers some home health care.
Medicare Part B is your medical insurance and it covers certain services by doctors, outpatient care, medical supplies and preventative services. Medicare Part C is known as the Medicare Advantage Plans and is the insurance plan you purchase from a private company that contracts with Medicare. It covers all your Part A and Part B benefits.
Medicare Part D is your prescription drug coverage plan.
any health insurance company or plan, you can, from time to time, have issues with what Medicare pays for and what it doesn’t. You may have to file a claim and appeal a coverage or payment decision made by Medicare. There are five levels to the Medicare appeals process. Depending on the complexity of your claim, an elder law attorney may be helpful.
A successful Medicaid plan will allow you to receive the benefits of the program, while being able to retain enough of your income.
Medicaid is a federal program that provides healthcare benefits to low-income adults, children, pregnant women, elderly adults and those with disabilities. Medicaid currently provides coverage for more than four million senior citizens in the United States.
You can receive Medicare and Medicaid benefits. Medicaid is awarded your income and resources. In addition to paying for healthcare premiums and out-of-pocket medical expenses, Medicaid also covers custodial care.
It can take care of the long-term expense if you begin living in a nursing home.
In order to be able to use Medicaid for nursing home expenses, your application must be successfully submitted to the state where you will be living. It may require extensive Medicaid planning – which is legally positioning your income and assets, so you can qualify for Medicaid.
A successful Medicaid plan will allow you to receive the benefits of the program, while being able to retain enough of your income or assets to provide and support your surviving spouse or family members.
An elder law attorney can help you apply for Medicaid benefits and plan effectively.
There’s no way around it, long-term care is expensive. And for many Americans, it’s necessary. We all want to stay independent and in our homes as long as possible, but at some point, many of us will need to move in with a loved one, live in an assisted living facility or reside in a nursing home. Planning for that now can make the transition easier later.
To cover the cost, you may want to consider long-term care insurance. The amount of your policy premiums can go up your age, health or any preexisting conditions. So, the earlier you get the policy the better. An elder law attorney well versed in proper Medicaid planning or estate planning can also help you make the best financial arrangements for your long-term care.
The Age Discrimination Act makes it illegal for an employer to discriminate against you because of your age. The Act is specific to anyone over the age of 40. If you have a job or are seeking employment and believe you are being discriminated against because of your age, an elder law attorney can help assess your claim and take the proper measures to remedy the situation.
Elder Abuse Or Fraud
It’s hard to fathom why anyone would want to take advantage of or hurt a loved one or someone they are responsible for caring for. But unfortunately it does happen. More than half a million cases of elder abuse are reported each year in the United States. There are many more that aren’t reported.
Elder abuse can encompass mistreatment physically, emotionally, sexually or financially. It can also happen if you become neglected or abandoned. You deserve to be safe and well cared for but getting those situations isn’t easy and it can often take another loved one taking notice and taking over to end the abuse.
Elder law attorneys can help contact the proper authorities, try and recoup some of the lost finances or help get you or your loved one into a safe environment.
Grandparents Visitation Rights
Unfortunately, family members don’t always get along and sometimes the relationship between grandparent and grandchild pays the price.
Either from bitter disagreements or divorce, or even the death of a child’s parent, grandparents can often lose their right to see and be part of their grandchildren’s lives. Every state has its own set of statues with regard to grandparent’s visitation and rights.
An elder law attorney can help determine your rights and the best course of action to seek visitation if you find yourself in this type of situation.
This is not in any way an exhaustive list of the capabilities of an attorney who practices elder law. But it should give you a road map of sorts on the type of legal matters an elder law attorney can handle and help you decide if working with one is right for you.
If you decide that speaking with an elder law attorney is right for you, there are some questions you will want to consider asking before entering into an agreement.
The National Academy of Elder Law Attorneys (NAELA) says in your initial phone call to an attorney’s office, you may end up speaking with the attorney’s secretary or office manager.
NAELA recommends asking that person these questions:
Everyone needs to gain experience, but your need, you may not want to be the person they gain that experience with. It’s important to know how long an attorney has practiced law in general.
If you contact an attorney who practices elder law, but most of their practice is made up of environmental litigation, you may want to reconsider your choice.
All attorneys are trained to have a basic working knowledge of the legal system and the ability to gain information on any aspect of the law. But if someone’s practice mainly focuses on an area far removed from your needs, you might want to look for someone else.
A good fit to consider might be an estate planning attorney or a family law attorney who also practices elder law.
To be certified as an elder law attorney, he or she must spend 16 hours or more each week in the practice of elder law. 16 is a good number to gauge against when determining whether an attorney is a good fit for you.
Finding out an attorney’s fee structure on the front end will help you find one that fits your budget. Whether an attorney offers a free initial consultation depends on the attorney. Some will and use it as their pro-bono or reduced fee work. Most state bars encourage members to perform free or reduced fee work.
You may also want to inquire if the attorney will be charging you an hourly rate or a flat fee. Depending on your need, it could be either. For example, if you just need an attorney to draft a will for you, they might charge you a flat fee. If he or she is involved in ongoing representation for a Medicare or Medicaid claim for you, they may bill you for each hour spent on your case.
It’s always good to be prepared. You don’t want to show up at your first face-to-face meeting with an attorney and not have everything you need to get the advice you are seeking. And you certainly don’t want to be charged again for another consultation because you didn’t bring all the much needed and important documents the first time.
Getting answers to these questions is important, and if you aren’t satisfied with what you are being told, keep looking.
NAELA also has a recommended list of questions to ask when you choose an elder law attorney you want to work with. Once you’ve explained your particular situation and the reason for your meeting, you’ll want to find out the answer to the following issues:
- You should ask how long it will take to resolve your case and what, if any, alternative courses of action there are.
- You should ask the attorney to explain the advantages and disadvantages of each possibility or outcome for your case.
- Find out how many attorneys are in the office and if another one of them will be assigned to your case.
- Ask whoever is handling your case if they’ve dealt with or handled a matter it in the past. Depending on the complexity of your case, you will want to make sure the attorney representing you has proper experience. You wouldn’t want someone to operate on your heart who usually only performs knee replacements. The attorney may practice elder law, but they may not have handled a specific case yours. So, it’s important to find that out in advance.
- There are times the only resolution for an issue is to take it to trial and you will need to find out if your elder law attorney does trial work.
- It’s hard for an attorney to know what your final bill will be, but you can at least ask for an estimated cost, payment schedules and an estimate of how long it will take to resolve. It’s important to make sure the attorney you’ve chosen fits within your budget. Knowing up front will help prevent conflict and confusion later.
- Find out if the attorney is certified and what bars and other organizations he or she may be members of.
If you would to find an elder law attorney to speak with or work with, asking your friends and family who they recommend is always a good place to start.
The National Elder Law Foundation (NELF) is the only national organization that certifies elder and special needs law attorneys.
To be certified, attorneys must, among other criteria, pass an exam, practice elder law at least 16 hours a week and participate in ongoing, continuing education courses. You can search for a NELF-certified attorney on the organization’s website.
It’s important that you find an attorney that’s right for you. This person will be helping you with some personal and private matters over the course of time and you want to make sure you feel comfortable with them.
It’s important that you have a sense of trust with them and they explain legal requirements and ramifications in ways that you understand.
It’s your time, money and life, so don’t rush into a decision or relationship or feel pressure to work with someone you don’t have complete faith in.