Frequently Asked Questions

About Elder Law

• What is elder law?

• Is there a plan for my future?

• What are the Medicaid eligibility rules?

• Are my circumstances special?

• Am I filing for Medicaid before determining my legal rights?

• What makes an elder law attorney?

• When should I start looking for an elder law attorney?

• How do I find a new elder law attorney?

• What questions should I ask an attorney?

• What's the next step after I find an attorney?

• What should I know about fees?

• Shall I have things put in writing?

• Is there anything in particular I should keep in mind when dealing with an attorney?

Q: What is elder law?

 

A: The field of elder law is conspicuous in its definition, not by legal distinctions, but by the client to be served.  The elder law attorney may handle a range of subjects, but with a specific kind of client – seniors.  Elder law attorneys concentrate on issues that concern older individuals and their families, employing a variety of legal tools and techniques to meet the goals and objectives of the older client.  

Under this holistic approach, the elder law practitioner handles general estate planning issues and counsels clients about planning for incapacity with alternative decision making documents.  The attorney also assists the client in planning for possible long-term needs, including nursing home care.  Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to insure the client’s right to quality care are all part of the elder law practice.

 

Attorneys who work primarily with the elderly appreciate the complex financial and social realities and are able to address their clients’ legal issues in a comprehensive way.  They often work with other professionals such as accountants, financial planners and geriatric care managers to insure a coordinated plan.

 

One of the most common concerns presented to elder law attorneys is the wish to avoid complete impoverishment if long term care is needed.  In addition to helping protect assets from nursing home expenses, elder law attorneys:  

·         Advise about Social Security, Social Security Disability, and other public and private retirement benefits.

·         Prepare wills, trusts, and other documents so that property will pass efficiently to the beneficiaries.

·         Assist families in administering estates

·         Advise whether to buy long term care and supplemental insurance, and evaluate proposed policies.

·         Assist in applying for Medicaid (MassHealth in Massachusetts), Medicare, and other government programs.

·         Make sure the nursing home patient’s rights are respected.

·         Respond to quality of care complaints.

·         Represent clients in disputes involving nursing homes, Social Security, Medicare, Medicaid, or managed care.

·         Help address instances of elder abuse or fraud.  

 

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Q:  Is there a plan for my future?

• I have a relative receiving care in a nursing home...

• My parent has just been diagnosed with Alzheimer's... with Parkinson's Disease...

• My family member is recovering from a stroke...

A:  The prospect of long-term care in a nursing home is one of the most difficult and unpleasant experiences facing elders and their families, creating stress and anxiety about the quality and high cost of  care.  In Massachusetts, nursing home care averages $50,000-80,000 per year.

 

While Medicare and supplemental health insurance plans cover most of the medical expenses of an acute illness, they provide only minimal coverage of nursing home care.  Unless long-term care insurance was previously purchased, the only program available to assist in financing nursing home care is Medicaid (now known as MassHealth in Massachusetts), which is a joint federal-state public benefits program having a complex set of eligibility rules.

 

* 1999 adjusted annually

 

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Q: What are the Medicaid eligibility rules?

• Will we have to sell our home?

• Will my parents be eligible for Medicaid if they have $150,000 in the bank?

• What will happen to the vacation property?

• When should the Medicaid application be filed?

A:  Asset Limits:

 

To qualify for Medicaid coverage of nursing home care, a single individual cannot own more than $2,000 in “countable assets.”  Ordinarily a couple cannot own more than $83,960* (including $2,000 allowed to the institutionalized spouse), except when the spouse at home has income below certain specified amounts or has very high shelter expenses.  In these cases, it may still be possible to retain substantial assets and still qualify for Medicaid!  The home does not have to be sold to qualify for Medicaid.  It is a "noncountable asset" as long as the Medicaid application is completed correctly.

 

 Treatment of Income:

 

Once qualified for Medicaid, the nursing home resident must use his or her income, after certain deductions, to pay for the nursing home.  Medicaid pays the rest.  The spouse at home does not have to pay any of his or her income to the nursing home.  Sometimes, depending upon a number of factors, some of the income of the nursing home resident can be kept for the spouse at home.

 

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Q: Are my circumstances special?

• What is I have assets over $2,000 alone, or $83,960 with my partner?

• I own my home or other real estate...

• I have a trust...

• I have a disabled son or daughter...

• My son or daughter lives and takes care of me in my home...

A: Then you have a lot to gain from consulting a knowledgeable elder law attorney to advise you about your legal rights in these special situations and develop a plan to protect you and your family.

 

Medicaid reviews all financial records for the 36 months prior to application (60 months in certain cases involving trusts).  The purpose of this “look-back” period is to determine if any transfers were made which might disqualify the applicant from receiving benefits.  A disqualifying transfer will exist if during this period the applicant or spouse transferred a countable asset or the principal residence for less than fair market value.

 

Not all gifts cause a 36-month disqualification!  The amount of the gift determines the length of disqualification and date of eligibility.  Also, in special circumstances the gift causes no disqualification at all!

 

Sometimes, a carefully planned program of disqualifying transfers can be of long term benefit to the nursing home resident, his or her spouse and family.  Such gifting should, however, only be undertaken with the advice and assistance of an elder law attorney.

 

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Q: Am I filing for Medicaid before determining my legal rights?

 

A: The Medicaid application process is lengthy and cumbersome.  As a result, some nursing homes contract with private companies to prepare Medicaid applications for residents.  Medicaid application companies usually provide their services at no or low charge to the Medicaid applicant.  However, these companies generally represent the nursing home or hospital, not the Medicaid applicant or his/her family.

 

These companies are not attorneys, and do not give legal advice.  They merely assemble and file the actual Medicaid application.  Without an attorney/individual client relationship, financial information may be shared by the application company with the nursing home and/or the hospital which has hired the company.  If excess assets are discovered, the application company will inform the nursing home or hospital, and you will be expected to continue paying the facility with these assets.  Since the application company does not provide legal advice, it will not inform the family of alternative legal ways of preserving the excess funds.  The Medicaid applicant may therefore lose opportunities to preserve assets.

 

Even if your relative is already in a nursing home, options may exist to preserve remaining assets for your family.  Don’t be penny-wise and pound-foolish!  You may save money on the application but lose your house or life savings in the process.

 

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Q: What makes an elder law attorney?

A: Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems.

Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law.

 

Some of these include:  

• Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
• Medicaid
• Medicare claims and appeals
• Social security and disability claims and appeals
• Supplemental and long term health insurance issues.
• Disability planning, including use of durable powers of attorney, living trusts, "living wills," for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetence or incapacity.
• Conservatorships and guardianships
• Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents
• Probate
• Administration and management of trusts and estates
• Long-term care placements in nursing home and life care communities
• Nursing home issues including questions of patients' rights and nursing home quality
• Elder abuse and fraud recovery cases
• Housing issues, including discrimination and home equity conversions
• Age discrimination in employment
• Retirement, including public and private retirement benefits, survivor benefits and pension benefits
• Health law
• Mental health law

Most elder law attorneys do not specialize in every one of these areas. So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse's inheritance.

 

Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice a knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem. 

 

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Q: When should I start looking for an elder law attorney?

A: _

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Q: How do I find a new elder law attorney?

 

A: Your first question may be: How do I find an elder law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you're not sure, ask your clergy, your social worker, your financial advisor, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive and it serves you well to know that you actually need legal assistance before seeking an attorney.

 

There are many places to find an attorney in your city or state who specializes in problems of the elderly. Check with local agencies to obtain good quality local referrals. Some of the agencies you may want to call include:  

• Alzheimer's Association
• American Association of Retired Persons
• Area Agency (or Council) on Aging
• Children of Aging Parents
• Health Insurance Association of America
• National Citizen's Coalition of Nursing Home Reform
• Older Women's League
• Social Security Office
• State Civil Liberties Union
• State Insurance Commissioner
• State or Local Bar Association
• Support Groups for specific diseases
• Hospital or Nursing Home Social Service Department

Most of the above agencies can be found in the yellow pages under the heading "Associations."

 

If you know any attorneys ask them for a referral to an elder law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. Such persons are often the best and safest sources of referrals.

 

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Q: What questions should I ask an attorney?

 

A: Ask lots of questions before selecting and elder law attorney. You don't want to end up in the office of an attorney who can't help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.  

• How long has the attorney been in practice?
• Does his/her practice emphasize a particular area of law?
• How long has he/she been in this field?
• What percentage of his/her practice is devoted to elder law?
• Is there a fee for the first consultation and if so, how much is it?
• Given the nature of your problem, What information should you bring with you to the initial consultation?

 

The answers to your questions will assist you in determining whether that particular attorney has those qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.

 

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Q: What's the next step after I find an attorney

 

A: When you have found an appropriate attorney, make an appointment to see him/her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent too your situation. After you have explained your situation, ask: 

• What will it take to resolve it?
• Are there any alternative courses of action?
• What are the advantages and disadvantages of each possibility?
• How many attorneys are in the office?
• Who will handle your case?
• Has that attorney handled matters of this kind in the past?
• If a trial may be involved, does he/she do trial work? If not, who does the trial work? If so, how many trials has he/she handled?
• Is that attorney a member of the local bar association, its health advocacy committee, or trust and estates committee?
• Is that attorney a member of the National Academy of Elder Law Attorneys?
• How are fees computed?
• What is his/her estimate of the cost to resolve your problem and how long will it take?

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Q: What should I know about fees?

 

A: There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often he/she bills. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises! If you don't understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.

 

Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.

 

In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs. Find out if there will be any other incidental costs.

 

The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.

 

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Q: Should I have things put in writing?

 

A: Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. REMEMBER-- even if your agreement remains oral and is not put into writing, you have made a contract and are responsible for all charges for work done by the attorney and his/her staff.

 

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Q: Is there anything in particular I should keep in mind when dealing with an attorney?

 

A: A positive and open relationship between attorney and client benefits everyone. The key to getting it is communication. The communication starts with asking the kinds of questions contained in this document. Use the answers to the questions as a guide not only to the attorney's qualification, but also as a way of determining whether you can comfortably work with this person. If your concerns are given short shrift, if you don't like the answers to these questions, if you don't like the attorney's reaction to being asked all those questions, or if you simply do not feel relaxed with this particular person, DO NOT HIRE THAT PERSON. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties which may arise between the two of you. If you take the time to make sure that you are happy right at the beginning you can make this a productive experience for both you and the attorney. You will thank yourself, and your attorney will thank you.

 

For a free copy of this brochure, "Questions and Answers When Looking For An Elder Law Attorney," send a stamped self-addressed business sized envelope to NAELA Q & A, 1604 N. Country Club Road, Tucson, AZ 85716-3102.

 

Visit the NAELA website at http://www.naela.org for a searchable listing of all NAELA members by name, business, or location; or, 

call 1-877-FOR-NAELA (1-877-367-6235) toll free to obtain the MA NAELA membership directory and find an elder law attorney near you.

 

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