Elder Law Attorneys Are Not Just Old Lawyers

Friday, April 01, 2016

By Olen M. "Mac" Bailey, Jr. 

What is Elder Law? 
Elder Law is defined by the client being served (i.e., seniors or the elderly), not by the age of the lawyer. Elder Law issues include Medicare reimbursements, Medicaid qualification, wills, living trusts, powers of attorney and other issues that impact older Americans. Elder Law issues also impact the senior's family members such as children, grandchildren and siblings. This impact can be emotional, financial or both, and can be a very dramatic and life-changing event for the non-senior. One area of primary concern is long term care, i.e. the issue of "Nursing Home" or "Nursed At Home". 

What is Long Term Care? 
Long term care is required when a chronic condition or illness limits your ability to perform certain "activities of daily living" such as eating, bathing, dressing and toileting. You can receive long term care in a skilled nursing facility (nursing home) or at your own home. Some medical studies suggest that 1 out of every 3 persons reading this article will require some form of long term care during their lifetime. 

Who Will Pay For Your Long Term Care? 
You can pay for your long term care in one (1) of four (4) ways: 

  1. Private Pay. Private pay means pay it yourself. This method is the most simple, yet can be the most costly. 
  2. Medicare. MediCARE will pay for some, but not all, of your skilled nursing care. For example, if you were hospitalized for 3 days or more and entered a nursing home within 30 days of discharge from the hospital, then Medicare will pay all nursing home costs for the first 20 DAYS ONLY. For the next 80 days, Medicare pays for part and you pay for part. After 100 days, Medicare pays for ZERO and you pay for ALL. 
  3. Medicaid. MediCAID is a program for IMPOVERISHED seniors. To qualify for Medicaid, you must meet both medical and financial criteria. Medicaid in Tennessee only pays for skilled care at a facility, NOT at your home. 
  4. Long Term Care Insurance. You can purchase insurance to pay for your long term care costs. Before you purchase LTC insurance, ask the insurance professional about medical qualification, costs and coverage. 

Medicaid Planning In most cases, Medicaid planning should be done before you need long term care. Medicaid qualification rules are complex and are important to understand and apply correctly. Furthermore, the facts of each case are different. If you are single, then you can only have certain assets. For example, you can have NO more than $2,000 in cash or investments. If you are married, then the spouse who is not in the nursing home (the at-home spouse) can keep more of the couple's income and assets to live on while the institutionalized spouse is in the nursing home. 

Not all income and assets are treated the same. For example, the at-home spouse's retirement assets may be exempt. Furthermore, planning before one spouse is admitted to a nursing home is much more effective. 

If you have more assets than are allowed, then you have to "spend down" your assets before you qualify. If you give away your assets, then you may be disqualified for a period of time after the gift. An experienced elder law attorney can help you apply the Medicaid laws to your specific facts so that you can pay for your long term care AND preserve your assets for the at-home spouse and your children.