Elder Law is a broad area of practice that is focused holistically on older individuals and their families. This practice area came about to address an aging population that is increasing in the United States. My concentration in Elder Law is devoted to Long-term care planning, particularly as it intersects with Estate Law and the need to establish a trust to protect an elder’s assets for their heirs.
Most people would like to remain in their homes as they age in place and my practice helps clients find legal options and benefits to fulfill this goal. One key item for assisting these elders is to provide them with Powers of Attorney for Property and Health Care. The POA for Property that I use has expanded powers to enable the agent to accomplish asset protection and a wide array of actions to make Guardianship unnecessary. Guardianship can become necessary where the elder becomes psychotic and revokes all of their agents on their POA’s and can no longer execute new documents. An Irrevocable Trust, sometimes known as a Five Year Trust or Legacy Trust is also essential for avoiding huge financial losses at the end of life from unscrupulous care facilities or exploiters. This Irrevocable Trust makes it possible to put your assets in a “lock box”, including your home in an Occupancy Agreement with that trust, so it can be guarded by a trusted Trustee that you choose while you have capacity to do so. Nothing else can fight undue influence from outside predators or family members better than one of these trusts. The elder that has dementia and is determined to gift thousands of dollars to a Nigerian Prince will not be able to reach his assets held in this kind of trust, if he has chosen his Trustee well.
Most often, the elder has an older Will and POA’s with a large amount of assets and a home that is paid off. If this elder needs help transitioning to a skilled nursing facility, I counsel them or their POA Agent to use a Third Party Health Care Advocate to narrow the search and produce the diligence to afford the family advance information of the culture and safety of that facility. If the POA Agent is motivated, I can help them save assets; structure the method for saving the assets and coordinate that with the elder’s admission to the facility. The net effect is that the elder has a “problem.” They need to pay a large amount of money to a facility in exchange for being admitted and allowed to file a Medicaid application upon admission. If I have helped them to save half of their assets, it is often a great deal of money that they now need to give the facility in the form of an immediate annuity and the facility will appreciate the fact that the family has done its homework and has money to bring to the table that will be approved by Medicaid. If all goes well, the elder has gifted half of their estate away from themselves and is now applying for Medicaid and paying the facility the other half of their estate in the form of a Medicaid Compliant Annuity. By doing this planning, his/her estate can re-gift their assets back in the way of services and goods to that elder that will not count against their ability to collect Medicaid benefits. Once that elder dies, the remainder of the gifted portion of their estate will pass to their heirs and this is all possible following Medicaid rules with legal advocacy shepherding it through the lengthy application and review process which is more like an audit than an application.
Another key defense to employ during this application process for Medicaid is to also have a legal review of the skilled nursing facility contract that is often a one-sided, over reaching contract that seeks to protect the facility at all costs and to deprive rights and defenses of the residents in the process. Here I review the contract, excising the language that seeks to have the elder waive their rights under law or to strip them of their rights under law. I prepare a memorandum/addendum for that contract that sates why the contract provisions were stricken out and gives the facility the Administrative Code citations to see why. The elder and their POA Agent are far less likely to be drawn into court on a contract breach allegation if that offending contract language has been removed.