Do I Need an Elder Law Attorney? Long-term Care Planning as Part of Your Estate Plan

Elder Law is a sub-specialty of estate planning, whereby we help families preserve their assets and qualify for assistance from the government to help pay for long-term care at home, in assisted living, and in skilled nursing facilities. We prepare specialized estate planning documents such as Trusts and Wills, and incapacity planning documents such as Durable Power of Attorney and Advance Health Care Directives, to allow trusted family members and friends to help our clients plan for their long-term care.

A Case Study

Let me introduce you to Sarah and Nathan Drewstein—an avatar of my typical client. They have been married for over 60 years. They have three children: Harold, Eileen, and Samuel. Harold and Samuel live in New York, but Eileen is local. Sarah and Nathan moved to Florida in 1989 when they sold their house in Brooklyn and retired to Boca Raton. Nathan comes to my office with his daughter, Eileen. He is racked with guilt, because he can no longer take care of Sarah by himself at home. Though he would never admit it, he feels scared and lonely and is afraid of putting Sarah in danger. He is very direct about the fact that he is worried about running out of money. Sarah is no longer able to walk and needs help with her activities of daily living. She has fallen, and they have had to call the paramedics to help Sarah up. Luckily, she hasn’t gotten hurt, but the paramedics called Eileen, and Eileen called her brothers. They have encouraged their parents to get help and want to see the benefits available. Eileen found me because I helped her friend’s parents.

As soon as we sit down, Nathan tells me he already has an estate plan, his daughter is a nurse, his sons are big shot financial advisors, and he doesn’t see how I can help him, unless I give him a winning lottery ticket. I explain that general estate planning involves planning for your assets after your death. Elder Law long-term care planning involves planning for what happens while you are living and unable physically and/or mentally care for yourself independently. The specialized estate and incapacity plans that we prepare allow our clients to maximize their savings while living to afford the best possible care.

Nathan then tells me that although he is a Veteran of the Army, and he is fine, he does have about $400,000 in savings and retirement plus their home, which he is afraid he is going to outlive, because his wife needs a lot of help. I explain that to qualify for Medicaid, one must have no more than $2,000 in assets, and no more than $2,523 per month in income, an amount that increases annually. Elder Law Attorneys help people shelter their assets using our “Elder Law Toolbox” so that they can legally qualify for government benefits from Medicaid and the Veterans Administration, if applicable, while also benefiting from their own savings. We do this because money buys care, and our goal is to preserve our client’s safety and dignity. Because he does not need help himself, he cannot qualify for the VA help yet, but he tells me, once he stops driving and his hip gives out, he will let me know.

Eileen said, “I am a nurse. I know that my parents have different needs. I do not want to separate them. Can they get help at home?” I explain that Medicaid will pay for (1) a small amount of home care (typically 4-5 hours per day), or (2) up to $1,500 toward assisted living, or (3) the difference between an individual’s income and full cost of a skilled nursing facility, the average cost of which is between $13,000 and $15,000 in South Florida.

Nathan tells me that he heard there a 5-year waiting period. I explained that it is not a waiting period, but rather a look back period, because Medicaid penalizes applicants that have made improper transfers of assets to qualify for Medicaid. In Florida, while it is helpful to pre-plan, we can help people obtain Medicaid benefits in a care crisis, while preserving their savings so that they can afford more and better care. We have many tools that we can use to get help sooner and truly get around the five-year lookback period.

What happened to Nathan and Sarah? By the end of the meeting, I can see the tenseness has disappeared from Nathan’s face, and Eileen is looking more relaxed and in control. They can see a light at the end of the tunnel. They retain us to redo their estate plan to allow for long-term care planning—I meet with Nathan and Sarah privately, and both are very sharp. Nathan is a dedicated caregiver to Sarah, and eventually relents to the family hiring Daisy, a caregiver in their home for four hours per day.

A couple of years after we meet, Nathan passes away after a brief illness, and Daisy cannot take care of Sarah full time at home. Sarah calls the office with Eileen. She explains that she is lonely and is ready to move into a nursing home, where she can have friends and things to do, but still have Daisy care for her a few hours per day. Sarah keeps her home just in case she changes her mind. We applied for Medicaid, and Sarah is doing well at a local skilled nursing facility, where Daisy comes to help her bathe three times per week and brings her lunch and wheels her around the gardens twice per week. Sarah does not like the food at the nursing home, but she has friends, a regular mahjong game, and activities. She misses Nathan but is happy and is not lonely. Eileen visits her mother and makes sure she’s doing well every week, and gets near daily reports from Daisy.

By Heather B. Samuels, Esq., Florida Bar Board Certified Elder Law Attorney who is guided by her belief in tikkun olam, which requires the adherence to ethical principles to “save the world” or give back to society and serves the community through numerous roles in the state and local Bar associations.