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Elder Law

Elder Law Representation, Including Nursing Home Admission and MassHealth Applications

As seniors age, they made need help with their finances or someone may have to make medical decisions on their behalf. Planning in advance is the most critical part of Elder Law. First, you should have the documents in place that will give family members and friends the ability to care for you, either temporarily, during a medical emergency, or permanently, in the case of a condition such as dementia or Alzheimer’s disease. These documents include a Durable Power of Attorney, Health Care Proxy and Living Will Declaration. In these documents, you name the person who will be responsible for managing your finances and making health care decisions on your behalf in the future, if you are unable to do so. Your instructions can range from simple banking arrangements, to alternate living arrangements in the event of disability, and to the ultimate decision of dying with dignity. With these documents in place, family members or trusted friends will be able to care for you, according to your wishes.

It is critical that you do this planning in advance, before a medical condition makes it impossible for you to sign legal documents. Don’t wait until a debilitating stroke or dementia makes it impossible for you to sign legal documents. At that point, your family’s only option is to start Probate Court proceedings for the appointment of a family member to serve as your legal Guardian. Probate Court proceedings are public, expensive, time-consuming and stressful for the family member or friend who must appear in Probate Court in order to be appointed as your legal Guardian. With the right documents in place, the family members and friends chosen by you will be able to act immediately in a medical crisis, without having to go through the Probate Court.

Estate Planning Tools in Elder Law

You should also have a Will in place, to ensure that your estate will be managed by those family members or friends chosen by you and your property will be distributed in accordance with your wishes. Without a Will, Massachusetts intestate laws determine who will manage your estate and who will inherit your property. If you wish to avoid probate, establishing and funding a Trust is essential. If you wish to retain complete control over the Trust, a Revocable Trust is the best choice. For many seniors, passing on their hard earned home and life savings to their children, grandchildren or other family members is their primary goal. They know that a long nursing home stay can take their life savings and their home. Establishing and funding a Revocable Trust will not protect your assets from nursing home costs. If your primary goal is to protect your assets from future nursing home costs, establishing and funding an “Irrevocable Medicaid Trust” is a better choice.

Two years in a nursing home can deplete your life savings. In Massachusetts, it is not unusual for a nursing home to charge $400 per day. At that rate, one year in a nursing home will cost $146,000. Three years will cost $438,000. No one wants to spend his or her life savings and sell the family home to pay for nursing home costs. This can be avoided if you plan ahead. There is one program that pays the cost of nursing home care. Medicaid, is a joint federal/state program that is administered in Massachusetts as the MassHealth program. To qualify for benefits, you must meet strict financial eligibility rules. Under the current MassHealth rules, you can’t just simply gift your home and savings to your children and then apply for benefits. There is a five-year disqualification period for benefits (known as the five year look back) after you make a gift to your children or other family members or transfer your home and savings to an Irrevocable Medicaid Trust. That means you should take appropriate steps to protect your assets while you are still healthy and able to care for yourself. Planning options include long-term care policies, gifting to younger family members, deeding title to your home to your children with a reserved life estate and establishing an Irrevocable Medicaid Trust to protect your assets.

Unfortunately, it is not always possible to plan in advance. In a medical crisis, family members must make difficult decisions under stressful conditions. It may be necessary for a family member to be appointed as the Guardian of a spouse or parent through Probate Court proceedings. You may have to find a suitable nursing home or assisted living facility for a spouse, parent or sibling within a few days of a hospital admission and figure out how to pay for it. There are many misconceptions about what happens when a family member must be admitted to a nursing home. Contrary to popular opinion, the state does not “take” your house and your life savings. If the family member who is being admitted to the nursing home is married, there are many planning options that can save the couple’s home and life savings.

Under the MassHealth regulations, the “community spouse” may keep some, or all, of the couple’s income, the family home and $119,220 of the couple’s savings and investments. Although the institutionalized spouse must reduce his or her assets to $2,000 in order to qualify for MassHealth benefits to pay for his or her nursing home care, he or she can transfer assets to the community spouse. If the couple’s financial assets exceed $119,220, excess assets may be spent on prepaid burial contracts for both spouses, repairs to the family home, the purchase of new appliances, and other permissible “spend down” items under the MassHealth regulations. The community spouse may also use the excess funds to purchase an immediate irrevocable annuity that will provide monthly income to the community spouse to supplement his or her other sources of income. The community spouse may keep all of his or her income and some of the institutionalized spouse’s income, to ensure that he or she will have at least $1,925 of monthly income. Depending on his or her living expenses, he or she may keep up to $2,925/month of the couple’s combined income.

If the MassHealth applicant is single, widowed or divorced, he or she may transfer title to the family home to a sibling with an equity interest, an adult disabled child or a “resident caretaker child.” These planning options may be utilized at the last minute, but they must be done correctly in order to qualify for MassHealth benefits.

Attorney Atkins has an advanced legal degree in Elder Law services and will work with you and your family when a medical crisis occurs finding the resources available to enable you to continue living in your home, and planning to protect your home and your life savings from future nursing home costs. He is available during a medical crisis when difficult decisions, including assisted living and nursing home admission, must be quickly made.

Contact us today to schedule your initial consultation with our elder law lawyer. From our office in Sutton, Massachusetts, we serve clients in Worcester, County.

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