I’m an Elder Law Attorney helping families in and around the Orange County, CA area.
I’m sure you’re more than aware how difficult it can be emotionally, physically and financially to care for an aged loved one who needs long-term care.
Long-term care can take the form of in-home health care, assited living or nursing home care.
It can literally make you feel helpless. The negative impact on your health, employment, income and financial security can cause you to experience high levels of stress and depression.
Yet ironically, with billions paid out in government benefits, close to 57% of Americans receive NO FINANCIAL SUPPORT from Medicare, Medicaid or any other government programs. And in many cases, it’s not because they don’t qualify.
It’s because they have done things incorrectly or recieved bad advice!
The AARP has reported that the average senior will be out of money after less than 26 weeks of care!
This means that they can no longer pay privately.
Find Comfort in Knowing Your Financial Options
There are many ways to relieve the financial burden that occurs when your loved one needs long-term care.
But getting assistance from Medicare, Medicaid, the Veteran’s Administration and other public sources can be so complex that many people who deserve help simply never figure out how to get it.
And, finding out what programs you can qualify for is a hugely time consuming process.
I’m sure you’ve talked to doctors, social service professionals, read books and visited informative websites.
The sad reality is however, that much of the advice you will receive is outdated or just plain wrong.
Let’s take a quick look at some of the programs out there: Medicare will pay some nursing home costs when skilled nursing or rehabilitation services are required.
But, you must use a Medicare-certified nursing home and you must receive care immediately after a hospital stay, but only up to 100 days with only 20 days paid in full.
So if you are facing long-term care in a nursing home for more than 100 days, Medicare will eventually run out.
And, Medicare can’t help you if your loved one is in an assisted living facility and Medicare for in-home care is very limited.
Medicaid will cover most nursing home costs for people with limited income and assets. But, eligibility varies by state and will only pay for facilities certified by the government.
Many people believe the limited income and assets requirement means they could never qualify for Medicaid.
But, in many cases, they are wrong. There are steps you can take to preserve your savings, car and even your home, and much more.
Millions also believe that they would never need Medicaid, but the statistics paint a different picture: the average person runs out of their money after less than 26 weeks in a nursing home.
Other statistics put it at less than 14 weeks.
Veterans’ Benefits are available to veterans and widows of veterans who meet certain criteria. Most people are unaware of a little known benefit that acts as a pension simply for being over 65.
I’m not talking about an insignificant amount of money either. In many cases it can add up to more than you receive from social security.
Up to about $1,900 per month! However, the majority of people (about half of all nursing home residents and most residents who use at home care or who live in assisted living facilities) pay costs out of their own savings.
This is called Private Pay. When your loved one pays privately, their money is eaten up by ever rising long-term care costs until eventually they become eligible for Medicaid.
Still some people never become eligible because they either don’t understand their options, or they have somehow violated harsh Medicaid rules—even years ago when nursing home care was the furthest thing from their mind.
There’s no doubt in my mind that with the right information and a little pre-planning you can minimize the negative impact your family will face.
And, there’s no time like the present to prepare.
Dallas Elder Law Answers Your Can Trust
A Member Of NAELA, The National Academy Of Elder Law Attorneys
“Both individuals and society need to prepare for population aging; the cost of waiting – financial and social – could be overwhelming.”
~Census Bureau Report 2014
According to a Census Bureau report released in 2010, there are now more Americans age 65 and older than there has been at any other point in the history of the United States.
In the decade between 2000 and 2010, the 65-and-older population increased by more than 15%. That demographic now makes up approximately 13% of the country’s population. In 2000, it was only 12.4%. More tellingly, in 1900, seniors only made up around 4% of the population. A century ago, only one out of every 25 people was age 65 or older; today, that number is one in 11.
According to Carrie Werner, a statistician at the Census Bureau, “The population age 65 and older has increased notably over time. It is expected to increase more rapidly over the next decade, as more Baby Boomers start turn 65…”
To put that into a more concrete perspective, in 2012, there were 43.1 million people in the US who were 65 or older. By the year 2050, that number is expected to reach 83.7 million, or 21% of the population.
“Changes in the age structure of the US population will have implications for health care services and providers, national and local policymakers, and businesses seeking to anticipate the influence that this population may have on their services, family structure, and the American landscape.”
~ Jennifer Ortman, chief of the Census Bureau’s Population Projections Branch
What this means now and what it will increasingly mean in the near future is that there is and will be a significant and growing section of the population that will have specialized needs that are unique unto them.
Because the Baby Boomers and all subsequent generations of senior citizens had fewer children than preceding generations, they will not have the same expectations and resources for support and care in their old age that their forebears did. The maintenance and care that they will need will primarily have to come from their own resources.
Obviously, this paradigm shift in the realities of senior care necessitates a greater deal of advanced planning that has ever been required before. This is where Elder Law comes in.
What is Elder Law? What Is An Elder Or Elderly Attorney?
Elder law is a specific area of legal practice that deals with those issues that affect so-called “senior citizens”, typically those individuals that are 60 years of age or older. Much of elder law is concentrated on three specific areas – estate planning; provisions for care – i.e., Medicaid, disability, and long-term care; and guardianship.
This is a process whereby a person makes an advanced plan concerning their wishes as to how their property, belongings, and other assets are distributed after their death or incapacitation.
By making the necessary decisions during their lifetime, they gain several benefits, chiefly that they get to name the specific people to whom they wish to give their assets. These wishes become legally binding, because they were formalized in advance.
Another advantage to estate planning is that it can be arranged so that imposed taxes can have as small an impact as possible. Most people do not realize that federal estate taxes can be prohibitive, up to 55% of the estate’s value. Moreover, they must be paid in cash within nine months of the owner’s death. Since very few estates have that much in actual cash, assets must often be liquidated to pay the obligation.
However, by working with an Elder Law legal specialist to do some advance planning, those taxes can be reduced or even eliminated. There are several strategies that can be used to, including:
- Taking the proper exemptions
- Reducing the size of the estate beforehand
- Giving tax-free gifts
- Irrevocable Life Insurance Trusts (ILIT’s)
- Qualified Personal Residence Trusts (QPRT’s)
- Grantor Retained Annuity Trusts (GRAT’s)
- Grantor Retained Unitrusts (GRUT’s)
- Charitable Remainder Trusts (CRT’s)
- Charitable Lead Trusts (CLT’s)
- Family Limited Partnerships (FLP’s), and
- Limited Liability Companies (LLC’s)
Obviously, the legal requirements for each of these can be very complicated, and the suitability of each is dependent upon the specific circumstances of the estate and the family. For this reason, not just any attorney will do – it takes the unique experience of a lawyer that specializes in Elder Law.
Provisions for Care
Not surprisingly, most of a person’s medical expenses are incurred at the end of life. Most people understand this, just as they understand that it is essential to have enough medical coverage to account for these expenses. What they don’t realize is that often, it is not enough to simply have the coverage.
Often, it is also necessary to actually take legal steps to hold insurance providers accountable to make sure that these companies do in fact provide the promised coverage.
In the event that a senior needs to have any sort of long-term care, for example, a nursing home, the stark reality is that care can often be prohibitively expensive, anywhere from $40,000-$180,000 a year. This sort of expense can rapidly deplete a lifetime of saving, unless there has been sufficient planning well ahead of time.
The Federal Government’s Medicaid program is available to help individuals who are “impoverished”, but losing the bulk of one’s estate is unthinkable to most people. The object of long-term Medicaid planning is to protect the senior’s savings while still qualifying for nursing home Medicaid benefit.
There are specific steps that can be taken to achieve this goal. The federal government, as well each individual state, has specific guidelines as to which assets are exempt from being considered when determining eligibility limits.
Unfortunately, many people mistakenly believe that all they have to do to protect those assets is to transfer them into the name of a loved one. However, if handled improperly, the estate can still be held liable when the government attempt to recover the benefits it paid for the care of the Medicaid recipient.
In order to avoid this difficult circumstance, it is of critical importance to seek the advice of a legal professional well-versed in Elder Law. This type of lawyer can also assist in preparing the Medicaid application, to ensure that there are no unnecessary delays or denials.
Similarly, if the senior needs long-term specialized care that is not quite to the level needed at a nursing home, many individuals can find themselves woefully unprepared for the financial burden that can be placed upon their estates.
The right sort of legal specialist can greatly assist in preparing, planning, and protect those assets. An experienced Elder Law attorney can make certain that each family member knows what to expect in regards to managing the health care and the financial affairs of a senior who has become incapacitated, and can therefore no longer make their own decisions.
The Veterans Administration has a pension benefit called Aid and Attendance. Not all veterans will qualify. To be eligible, the veteran must have served at least 90 days, with at least one of those days served during wartime.
The disability does not need to be service-connected, but if that veteran (or their surviving spouse) requires the aid of another person to perform “everyday” actions, such as bathing and personal grooming, feeding themselves, dressing, or using the restroom, assistance may be granted. This assistance is also available to seniors who are blind, bedridden, or living in a nursing home.
There are certain income qualifications that must be met, and there are some types of income that are exempt from inclusion. Because understanding if one meets these qualifications can be very confusing, it is usually very beneficial to seek professional counsel.
In addition to financial considerations, it is also very important for people to spell out in detail exactly how far they want medical personnel to go to extend their life – extraordinary measures, resuscitation, life support, etc.
By creating a plan in advance through a “living will”, family disagreements can be avoided, the suffering of loved ones can be prevented, and any uncertainty about the elder’s wishes about their medical treatment can be eliminated.
A living will can determine what medical treatment the senior will receive if they are terminal or in a permanent vegetative state.
Some instructions that can be left in a living will include:
- Whether CPR should be given if the senior stops breathing
- A “Do Not Resuscitate” (DNR) order
- If food or water should be given through tubes
- If machines are designed to keep the patient breathing should be used
- Organ Donation
- Any other “extraordinary measures” designed solely to keep the patient alive with no hope of recovery
A living will cannot prevent the administration of comfort care or medication for pain.
A living will can also designate the specific individual to make health care decisions for the senior if then senior becomes incapacitated or unable to make their own decisions. It is usually a good idea to have a secondary individual named, as well. This representative will also be empowered to make end-of-life decisions.
Living wills and other advanced directives must be created in a specific legal manner in order to be enforceable. For example, the instructions must be officially witnessed and only certain qualifying individuals can be named as representatives.
When a person has been declared mentally incompetent by the Court, another individual, usually a family member, can be appointed as their guardian/conservator. This guardian will then become responsible for the other person’s safety, welfare, and assets. In this event, the elder who is been deemed incompetent will lose the freedom to make their own decisions about all “important” aspects of their life and care.
The guardian will determine how to best serve the physical safety and welfare concerns of the senior. For example, the guardian decides where the senior will live, what medical care will be given, and even how much personal freedom the senior will be given.
Likewise, the guardian can use the assets of the individual or in any way they deem necessary to meet their charge’s needs. They must use those assets wisely, and they have the legal “fiduciary duty” to act in that individual’s best interests.
Even though the guardian will have complete control over the senior’s financial assets, they are still held responsible by the Court. For example, they must keep complete and accurate records of all expenditures, and they must report to the Court on a regular basis the status of the senior’s finances and assets. They must be able to show that they are responsibly using those assets for the care and maintenance of the senior, and not for their own personal gain.
In certain circumstances, and that the total discretion of the Court, different guardians may be appointed.
For example, “Guardians of the Person” are responsible for the physical well-being of their wards, but may not touch that person’s assets or finances. Conversely, “Guardians of the Estate” only have authority over property.
Furthermore, a Court usually only has jurisdiction of any real property located in-state. What this means is that one senior can potentially have several guardians of their assets and properties spread out over multiple states.
Although the senior cannot choose their guardians in advance, the Court will take the relationship of the guardian and the ward into account. More importantly, the choice of guardian will be based upon the potential guardian’s ability to adequately fulfill their obligations and responsibilities toward their ward.
The more assets or properties an individual has, the more imperative it is their legally-appointed guardians to have the benefit of experienced professional counsel. This counsel is necessary for two important reasons.
First, because the guardian must report to the Court, it is in everyone’s best interest if the guardian can completely demonstrate to a legal standard that their actions on behalf of their ward are necessary, proper, and in that person’s best interests. Being able to prove all those points will eliminate the need for termination of guardianship or any other unnecessary legal entanglements.
Secondly, if this legal counsel has been retained and instructed in advance, the attorney can act as another “check” to ensure that the appointed guardian is in fact faithfully executing their responsibilities. It is just another way that the senior’s welfare, both physical and financial is adequately protected.
The senior citizens of today (and tomorrow) can reasonably expect to live decades past retirement. This longevity will bring a whole new set of legal concerns. Timely prior consultation with an experienced attorney specializing in elder law can allay these concerns.
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