Elder Law
Broadly defined, “Elder Law” is a field of law that addresses the needs of senior citizens. Practically speaking, though, Elder Law focuses on issues related to aging, frailty, and declining health. Of course, other areas of law are relevant to seniors, too.
If you’re older (or know someone who is), you know that with age everyday tasks can become increasingly difficult. Thankfully, loved ones often step in to help; however, their efforts can be frustrated by the measures medical and financial institutions take to protect our privacy. I can help you cut through this red tape, creating legal documents that allow you to give your helper authority to act on your behalf. These documents, called “powers of attorney,” also allow you to appoint someone to make health decisions for you in the event of a medical crisis.
Many older adults worry that, should a nursing home be necessary, its high cost quickly will erode their life’s savings and leave them nothing to pass to future generations. This concern is justified: for 2017, Medicaid calculates that the average rate a non-Medicaid client in Pennsylvania pays for nursing home care is $321.95 per day.
If you are a senior worried about possible future long-term care costs, I can help you explore planning techniques to conserve your wealth, even if skilled nursing care becomes necessary. If your family is facing a medical crisis and long-term care is required immediately, I can help you navigate the long-term care system to ensure your loved one is getting good care, and can advise you about the best ways to use that person’s resources.
Long-term care planning involves considering your current and future needs and creating strategies to put you in a good position for the future. For example, it may be wise for elders with no immediate needs to think about how their current living setting could be adapted to accommodate health changes. Is your home located in a community that is “age-friendly,” with public transportation, amenities close by, and community supports in case you need additional help? Are you confident your home is safe and in good repair? Is there someone who checks on you and whom you could call if you needed help?
Another facet of long-term care planning is creating estate planning documents. Some of these documents are geared toward helping you if you are unable to make or communicate decisions; others direct how your property should be distributed at your death. See the Estate Planning page [hyperlink text to page] for more information.
Finally, long-term care planning encompasses considering how to plan for the possibility that you might someday need significant assistance in daily life. If someday you need help with “activities of daily living” (for example, bathing, grooming, moving, and eating), it’s likely that you will either need to move to a community that provides help or will need to arrange for care to be provided at home.
The fundamental principle of long-term care planning is that being prepared for the possibility of illness or injury helps you make adjustments so that you’ll be better able to manage if they occur. Right now, you can take action to protect yourself and give yourself more options to help you manage whatever might come your way.
Unfortunately, health insurance plans generally do not cover care provided long-term in a skilled nursing facility. Medicare does provide some skilled nursing benefits. Under Original Medicare, per benefit period, Medicare Part A will pay for the first 20 continuous days of nursing care and will pay $164.20 each day for the 21st to 100th day of continuous nursing care. If you have purchased a “Medigap” plan to complement your Original Medicare, the plan may pay coinsurance on days 21-100 of continuous nursing care. Nursing care costs above and beyond 100 continuous days are not covered under these plans.
Medicare Advantage HMO plans may offer coverage broader than Medicare Part A, depending upon the plan. However, if you have a Medicare Advantage plan, your plan might not pay coinsurance on days 21-100 of nursing care, or it might only pay for stays at specific in-network nursing homes. Coverage varies from plan to plan.
First, know that you’re not alone. Many people lack the resources to pay privately for all the care that they might need.
Medical Assistance (or “Medicaid”) is an insurance program funded by the federal and state governments and managed by the states. In Pennsylvania, Medical Assistance does provide long-term nursing care benefits for eligible recipients.
Medicaid is intended to function as a program of last resort for the poor and has strict requirements for financial eligibility. Generally, in order to be eligible for Medicaid long-term care benefits, the value of a person’s “countable resources” has to be below $2,400 or $8,000, depending on the person’s income. Certain assets are excluded when calculating countable resources. There are many exclusions: for example, your personal residence (up to a limit of $560,000 as of January 1, 2017), one car, and household goods and effects all are excluded. However, Medical Assistance counts most of what people think of as savings. If your countable resources exceed the limit permitted by Medical Assistance, you will have to “spend down” your assets to the limit in order to be financially eligible.
When one person in a marriage needs nursing care but the other person continues to live at home, there are “spousal impoverishment” provisions which allow the spouse at home to keep up to $120,900.00 (as of 2017) of resources that otherwise would be countable in order to meet the at-home spouse’s future needs.
Whenever an elder goes into a nursing home and especially when a spouse remains at home, it is wise to consult with an elder law attorney. Planning how best to spend excess resources can dramatically affect quality of life, both for the elder, the elder’s spouse, and sometimes, other members of the elder’s family.
Often, a person following the advice of an elder law attorney obtains a better result than one accepting the advice offered by a nursing home’s admission personnel. Here’s why:
- Nursing homes offer to complete the Medical Assistance application because they want to ensure that they are paid for the resident’s stay. Nursing home personnel don’t work for you and aren’t bound to protect or advance your interests.
- In some cases, the financial interests of the nursing home are in conflict with the elder’s financial interests. Because the private rate the elder would pay for care is less than the rate Medical Assistance has agreed to pay for care, the nursing home’s financial interest is to have the elder spend down his excess resources on the nursing home. While payments to the nursing home are always part of spend-down, it may also be possible to spend excess resources in other ways that benefit the elder, or in ways that benefit the at-home spouse or other members of the elder’s family. Nursing homes have no incentive to tell you about these strategies or to help you use them.
- Finally, mistakes or omissions in the nursing home staff’s advice or work may harm an elder’s financial interests.
Elder law is a complex and changing field. A skilled attorney who practices elder law is the best person to advise you and represent an elder’s interests.