Elder Law is a fairly new and unique area of the law. As baby boomers and their parents’ age, they are living longer and often, living with chronic medical conditions. The cost of long term care continues to spiral out of control as families struggle to meet the needs of their aging members.
Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In most instances, the issues that we deal with are fact sensitive and the clients must be coaxed into giving us the information that we need to formulate the elder law plan.
The various disciplines that make up the elder law practice are in a constant state of flux. As a result, it requires the elder law attorney to spend a great deal of time reading current journals and cases and taking continuing legal education courses. In addition, many elder law attorneys meet in informal study groups to read, understand and strategize.
As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, I see two different clients. Both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child. There are no exceptions for transfers to caregiver nieces. However, after discussing this matter with Client B, I learn that the niece no longer works but collects social security disability. I advise Client B to transfer the house to a supplemental needs trust for her disabled niece. The result is the same, the house is protected and both clients are eligible immediately for Medicaid to pay for their long term care. On the other hand, the solution is very different. Remember - one size fits all – is not the rule. Your elder law plan is fact sensitive and requires a careful review of the facts and circumstances.
Oftentimes we see clients who are under the mistaken notion that because they did not plan, there is no way for them to protect their assets when faced with a crisis. This is not true. There are still planning strategies that can be implemented which will help to preserve your family’s assets while ensuring that your loved one gets the best care possible.