Elder Law

Elder Law

As you age there are many issues that come up. Some include who will help you with your finances, take care of you, and the inevitable – will I end up in a nursing home.

Arkansas Nursing Home Costs

In Arkansas the average price of a nursing home stay is $160/day, or $58,400/year. As you can imagine this can and will consume most of our life savings in a short period. Moreover, it will leave our loved ones (spouses, children, or both) with less resources for the remainder of their lives. The Medicaid system is full of rules and regulations that are difficult to understand. These rules are difficult and nuanced enough that most lawyers do not even understand them. Every situation is different, but we can typically save families at least 50% of their assets and sometimes as much as 75% of their assets. Protect What Matters, your family.

The consistently high costs for home health care, assisted living and nursing home care across the U.S. underscore the need to address long-term care as part of financial security planning. Further complicating the issue, America is getting older. According to the 2010 U.S. Census, there are more Americans over the age of 65 than any other age group, and U.S. Department of Health and Human Services (HHS) statistics show that people reaching age 65 have an average life expectancy of an additional 18.6 years (19.8 years for women and 17.1 years for men).Most people realize they will need care, and yet they’re not sure how they will plan for it.

The Cost of a Nursing Home

A Cost of Long-Term Care study done in 2011 concluded:

Assisted living facilities: The national average monthly rate for a private, single-occupancy room in an assisted living facility in the U.S. was $3,372.41. The national average monthly rate for a shared room in an assisted living facility was $2,592.40.

Home health care: The national average hourly rate for home health aides provided by a certified home health care agency was $20.65. The national average hourly rate for home health aides provided by a non-certified home health care agency was $23.98.

Long-term care: The costs vary considerably across the country. The average for an Arkansas nursing home  for the monthly rate for a room in a nursing home is $3,372.41.

Medicaid planning can be divided into two types: pre-crisis planning and crisis planning. Pre-crisis planning is for those individuals who have not yet begun to spend their assets on private care, but may need to in the coming years. Crisis planning is for those individuals using their life savings for long-term care, either at home or in a facility, with a substantial risk that they will run out of money.

Elder Law: Medicaid Crisis Planning

Clients come to us when an elderly relative is hospitalized or already in a nursing home for rehab or long term care. Sometimes the elder is already paying privately for nursing home care. They assume that the elder must spend down all of their assets on private nursing home costs. Wilson & Haubert, can help transition from  private paying the nursing home to protect assets for the elder’s benefit, and qualify the elder for Medicaid to pay the nursing home costs.

Elder Law: Medicaid Pre-Crisis Planning

A large part of Wilson & Haubert, ’s practice areas is Estate Planning. Pre-Crisis Planning begins before our clients enter the nursing home. It is best to complete Pre-Crisis planning before the  5 year (60 month) Medicaid look back period. When we plan for clients that might be affected with the high cost of long-term care we incorporate Medicaid planning into their Estate Plan. There are numerous ways to plan for protecting your assets from nursing home expenses.

Medicaid Eligibility

In Arkansas the Medicaid program is administered by the Department of Human Services. Usually the countable assets requirement for a single person is limited to $2,000.00 and it is $3,000.00 for a couple. If you give any money away to qualify for Medicaid there is a 60 month look back period and the applicant will be penalized for gifts during that time period. The penalty given is ineligibility for Medicaid benefits, the more money you give away the longer you are ineligible for Medicaid. If you are in Arkansas and need to plan for Medicaid or if you are already paying for the cost of long-term care, please give us a call. We would love to help.

Cost of an Elder Care Attorney

The cost of an elder care lawyer depends on the specific situation our clients are in. The situation could call for little work, or it could call for moving many assets, retirement accounts, the house, the farm, the family, etc. For that reason the fee can vary depending on the client. The practices we use save our clients money, even after our fee. If you need help in this area of law, please Contact Us.

Senior Guardianships

Over five million Americans suffer from dementia. This serious loss of brain function hinders the ability of seniors to care for themselves and make sound decisions. In these cases, a guardianship may be necessary to protect their quality of care, assets and legacy.

Guardianships for Adults

Guardianship is a legal arrangement that places an individual, also known as a ward, under the supervision of a guardian.  There are two main types of guardianship: guardianship of the person and guardianship of the estate..

A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a senior who is no longer able to make safe and sound decisions about his or her own person or property, or who is prone to fraud or undue external influence.

Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:

  • Choosing residence
  • Providing informed consent to medical treatment
  • Making end-of-life decisions
  • Making property transactions
  • Obtaining a driver’s license
  • Owning, possessing, or carrying a firearm or other weapon
  • Contracting or filing law suits
  • Marriage
  • Voting

Right to Due Process

In order to safeguard the protected person’s right to due process, he or she is provided with notice and is entitled to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

Guardianship of the Person

Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Maintaining the protected person’s autonomy as much as possible

Guardianship of the Estate

Guardianship of the estate empowers the guardian to make important financial decisions on behalf of the protected person, including:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets

Wilson & Haubert, routinely works with seniors and their loved ones to determine the best course of action, file the required paperwork and represent them in proceedings with the appropriate administrative agencies. We also work with the guardian to keep an up-to-date accounting of the estate.

Elder Law FAQ's

What is long-term care insurance and is it really necessary?

Long-term care insurance covers the risk that you may at some point in your life be placed into a nursing home by paying for some or all the expenses associated with nursing home care. It also frequently covers assisted living care or care in your home. Long-term care insurance can be a very valuable tool that can help you avoid depleting your estate in order to pay for nursing home care. Nursing homes greatly vary in cost depending on the quality of the home and the geographic area of the country in which the care facility is located. At a minimum, you can expect to pay several thousand dollars a month for decent nursing home care, which can rapidly deplete an individual’s savings.

What is Medicaid Planning and what does it involve?

Medicaid is a federal program that will pay for nursing home care. Medicaid is not to be confused with Medicare, which in most cases will not pay for extended nursing home care. Medicare is a program which people pay into during their working years, while Medicaid is a needs-based program intended to help impoverished Americans with medical expenses.

Doesn’t Medicare provide coverage for long term care?

Medicare does not provide coverage for long-term care, such as nursing home care. Medicare will pay for up to 100 days of skilled nursing care per illness. A patient must be hospitalized for the illness, and the patient must receive a high level of care in a nursing home that couldn’t be provided at home or on an outpatient basis. After 20 days of nursing home care, there is a large copayment required of the patient for the remainder of the stay.

Medicare will also pay for home health benefits if you are housebound and if a doctor has ordered home health services for you, at least some of which are skilled. Medicare will pay for up to 35 hours of services per week, and patients only have to pay for 20 percent of the cost of medical supplies.

Is Medicaid Planning legal?

Medicaid planning is legal. Elder law attorneys work to protect clients’ assets within the bounds of the law. Congress allows citizens to qualify for Medicaid after meeting certain requirements, and those requirements could be changed if Congress felt they were being abused. Medicaid planning is not any more illegal than planning to avoid taxes.

How long will it take to become eligible for Medicaid?

There’s no simple answer as to how long it might take an individual to qualify for Medicaid. There are many variables in every situation that must be taken into consideration and ultimately affect the eligibility timeline, including the state in which you live, whether your application is complete, your assets, income and expenses, any asset transfers you’ve made to individuals or trusts, and more. Before applying for Medicaid, you should consult an elder law attorney in your area. The attorney can help you understand both eligibility and the application process, and should be able to give you an estimate of the time frame you can expect.

Can my children take money out of our joint account without affecting my eligibility?

If a child removes money from your joint account, that could be considered a transfer to him. Currently, Medicaid has a “look back” period on transfers of assets within the past 60 months. This means that any gifts or other transfers of assets you made in the 60 months before you applied for Medicaid will be assessed in order to determine your eligibility. If you did transfer assets in the five year period before applying for Medicaid, you could be subjected to a penalty. Therefore, if you made a transfer of assets in the past five years, you should not apply for Medicaid without consulting an elder law attorney because the penalties could be severe.

What are some criteria to look for when selecting a nursing home?

First, how is the nursing home ranked by accreditation agencies or state regulators? Have there been violations or complaints against the nursing home? How does the nursing home rank when compared with other homes in the area? You should also visit the facility in person and request a tour.

Another important factor to consider is location. Is the nursing home located in an area that is convenient for family and friends to visit? Would family members be more likely to visit a nursing home located in another area?

Before choosing a nursing home, take a tour and ask for references of family members of current residents. If possible, take the tour at an unscheduled time, so that you know that what you are seeing isn’t staged for your benefit. During the tour, look carefully at the interactions between staff and patients. Does the staff seem caring and concerned? Do the residents seem content? What is the quality of the food served?
Choosing a nursing home can seem overwhelming at first, but often after visiting a few and evaluating their quality of care, the decision becomes easier.

Should I wait until I need Medicaid benefits before I see an elder law attorney?

No, if you anticipate needing Medicaid at any point in the foreseeable future, it’s prudent to seek the advice of a qualified elder law attorney. There are steps you can take to protect your assets which may not be available when you actually need Medicaid. Some of those steps may include transferring your assets or establishing trusts. An elder law attorney with expertise in Medicaid planning can evaluate your situation and advise you on the most prudent steps to take in order to preserve your rights and maximize benefits.

How much does an Elder Care Attorney Cost?

The cost of an elder care lawyer depends on the specific situation our clients are in. The situation could call for little work, or it could call for moving many assets, retirement accounts, the house, the farm, the family, etc. For that reason the fee can vary depending on the client. The practices we use save our clients money, even after our fee. If you need help in this area of law, please Contact Us.

Elder Law Blog

What is a “Miller Trust?”

Miller Trusts are a type of trust used to qualify a Medicaid applicant for Medicaid when the Medicaid applicant’s income exceeds the state published Income Cap.  In Arkansas, the “Income Cap” (a phrase with a specific meaning for Medicaid purposes) as of the date of this article is $2,250. This means any applicant for Medicaid…

Sep 25 2018

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How to Pay for Nursing Home Care

One of the greatest fears people have about aging is loss of health and ending up in a nursing home.  How are you going to afford to pay for long-term care? There are basically four ways to pay for the cost of a nursing home:     Long-Term Care Insurance- Long Term Care Insurance is…

Sep 4 2018

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What are the exceptions to the Medicaid transfer penalty?

We do a fair amount of asset protection for families with loved ones entering nursing homes and deal with medicaid transfers.  We almost always transfer assets out of the medically needy individual’s name. This generally allows for the preservation of a majority of the assets and allows the medically needy person to qualify for Medicaid….

Aug 20 2018

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Fear of Losing Control

My job as an estate and elder law attorney brings me into contact with people on a daily basis who have decided to begin their end-of-life planning. As a part of the initial conversation I have with clients, I usually ask what made them decide to do this planning now. After all, many of them…

Jun 19 2018

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