Paying for an elder law attorney an investment in the future
It may be best to state the obvious up front and be done with it. The statements in this column may be considered self-serving, but, recognizing that, they are correct. The issue is whether it is worth the expenditure to see an elder law attorney when dealing with the cost of long-term care.
This is not, by the way, a question of whether it is advisable to see any attorney. Law has become specialized as have other fields and it is important to consult someone who works specifically in elder law. The article that prompted this column originated with a question to an online site, “Elder Law Answers,” to which I belong as an elder law attorney. It can be found at www.elderlawanswers.com. Here is the question in relevant part posed by the on-line reader:
“Currently, my father is living at home and cared for by myself and my mother. But my mother is panic-stricken about the what-ifs of nursing home care and the community spouse. My parents still owe $94,000 on their home. Both are retired teachers. My mother is afraid that if my father ends up in a nursing home she won’t be left with enough to keep the house and enough to live on. She also refuses to contact an elder law attorney because she’s afraid it will cost too much … I am also on SSDI myself so I think there is some recourse there too but I neither understand enough to direct her nor can I afford legal assistance …”
For the moment I will bypass the answer given by Harry Margolis, the Boston elder law attorney who founded and manages Elder Law Answers. Harry is an extremely bright guy and handles not just that site for the public generally but also many resources for elder law attorneys.
The question, in its simplest form, is “can I afford an elder law attorney?” The question in the case of the online reader might be “can I afford not to?” at least to get started and then, depending on circumstances, maybe beyond but at the option of the client.
Here are some considerations.
1. At-home care. For mother and daughter caring for father at home, depending on income, there could be some limited assistance through the Medicaid at-home waiver, caregiver support, or, if father was a wartime veteran, homebound Veterans Aid and Attendance. An initial analysis could help to determine the availability of benefits.
2. Debt. With $94,000 in debt on the home and possibly other debt, the family needs to know what can and should be paid — and when — and a plan developed. When bills are paid makes a difference as to what can be kept.
3. Income. Mother needs to know how their incomes would be handled if Father goes to a nursing home or receives an in-home waiver. Depending on the figures, there could be a pleasant surprise. In a nursing home, Father’s income might be used to supplement Mother’s income to help pay certain household expenses such as mortgage and property taxes depending on a formula known as a shelter allowance used by the government and familiar to elder law attorneys.
4. Spousal share. The long name for this is Community Spousal Resource Allowance or CSRA. The amount that Mother would be allowed to keep if Father were to go to a nursing home depends on the overall liquid assets of both of them at the time that father goes into long-term care. Timing is important as to assets but it still needs to be coordinated with what people are willing to do at any given time.
5. Exempt assets. Some assets are not counted for Medicaid and the spouse at home can keep them. If Mother does not know what these are, she could spend and no longer have them available to her. In Pennsylvania, for instance, the IRA of the spouse at home is exempt.
6. Disabled adult child. An adult child on Social Security Disability receives special favorable treatment on gifting. A parent needs to know what this is.
7. Gifting and Post-DRA Structuring. Gifting often can delay Medicaid. Spouses need to know when this might happen, and also what structuring techniques are available after the Deficit Reduction Act that can actually help them to keep more to run the household.
Sorting through all of this is complicated but worth the time, effort and cost for peace of mind.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.