Elder law is a highly specialized and rapidly growing area of the law. It involves helping seniors and the people who love them plan for and manage the many changes that come with growing older. As experienced elder law attorneys in White Plains, New York, we design and implement Family Protection Plans, including tools such as wills, revocable and irrevocable trusts, powers of attorney, health care proxies, living wills, annuities, promissory notes and Medicaid applications. These documents allow our clients to provide directions to their loved ones and others as to how they are to be treated and cared for as they age. Through carefully crafted Family Protection Plans, our clients can often avoid costly and time consuming court proceedings, such as guardianship petitions, and protect their assets.
Long-term care planning
Most people want to spend their later years in their own home. They cannot imagine a situation in which their family would choose or be forced to transfer their care to a nursing home. Unfortunately, there are times when serious accidents or medical conditions make living at home without paid help impossible, even with loving family support. In situations like these, an assisted living facility or nursing home becomes the only option. This type of care is extremely expensive. Nursing home care in New York averages $128,850 per year. You do not want to wait until you need a nursing home or assisted living care before you figure out how you will pay for it. By that time, your choices will be limited and your assets at great risk.
By coming to us early enough to plan for the possibility of needing long-term care, we can counsel you about the merits of obtaining Long Term Care Insurance from reputable insurers to cover these future costs. In addition, we can put a variety of other planning tools to work on your behalf to protect your assets. However, even if you have waited too long to plan in advance for the possibility of incapacity, we may still be able to protect your hard-earned assets while still ensuring you get the care you need, by helping you obtain assistance from Medicaid.
There are times when Medicaid denies an application for Community Medicaid, Medicaid home care or Medicaid nursing home care because of asset or income levels. At the Law Office of Robert L. Boydstun, we may very well be able to help you obtain Medicaid assistance even if you have been denied benefits in the past, or are already in a nursing home””a situation known as a Medicaid Crisis.
If you or someone you love is facing a Medicaid Crisis situation, or interested in planning for the possibility of incapacity in advance, contact our office today for a consultation.
Why is it essential that I plan for my Long Term Care?
Private pay nursing homes cost in excess of $10,000 per month in the New York City metropolitan area, while assisted living facilities can cost $3,500 per month or more before any personal care services are added. In addition, we no longer live in a society where two or three generations of a family live in the same house. As a result, when we get older and need assistance with activities of daily living (dressing, bathing, toileting, feeding ourselves, getting into and out of bed, etc.), we may have to pay someone to assist us with these tasks. Perhaps we will need so much care that we can no longer live in our own homes. Medicare at most only pays for a few weeks of nursing home care. Medicaid provides some care while you are living in your own home, but the services approved may not be the amount of services that your doctor believes are needed. Medicaid may provide nursing home care. It generally does not provide for you to live in an assisted living facility. Medicaid has income and asset limits. If you apply for Medicaid so that you can go into a nursing home, your last five years of financial records will be reviewed to see if you have made improper transfers in order to qualify.
With proper long-term care planning, the assets that you have worked so hard to accumulate can be protected for yourself and your loved ones. You will also have more choices about where you will live and what care you will receive.
Does Medicaid have a five-year look back period when I apply for care in a nursing home?
When an application for Medicaid is made for the purpose of covering nursing home care, the Medicaid agency will ask for financial records to make sure that the applicant did not intentionally dispose of or transfer funds in order to be Medicaid eligible. If an impermissible transfer is found, Medicaid will impose a penalty period during which the Medicaid applicant will have to find another means of paying for the nursing home care. After the penalty period has expired then Medicaid will start paying for nursing home care. An elder law attorney can help you understand the application process and what types of expenditures are permissible.
Does Medicaid have a five-year look back period when I apply for care in my own home?
There is currently no Medicaid look back period in New York State when you apply for Medicaid home care. However, Medicaid costs are having a significant impact upon the New York State budget. As a result, there have been suggestions that the five-year look back period should also apply to home care in New York State. A look back period may be imposed in the future.
Does Medicare pay for nursing home care?
Medicare does not pay for nursing home care on an ongoing basis. It is not uncommon for Medicare to pay for about 20 days of nursing home care following a discharge from a hospitalization. A patient generally needs to have a physician indicate that physical therapy or other skilled nursing services are needed. The patient needs to show progress and improvement in their condition in order to get additional days of Medicare coverage for a nursing home stay. Even with progress, however, Medicare will only pay for nursing home care for a matter of weeks.
I can still take care of myself. Why should I give my children a Power of Attorney now?
If you wait until there is a crisis, you may no longer be competent and it may be too late to execute a power of attorney. If you become incompetent and do not have a Power of Attorney and a Health Care Proxy, a guardian may need to be appointed on your behalf to make decisions for you. The guardian may not be the person that you would have chosen. The guardian will have to report back to the court at least annually. There are costs for filing a petition for guardianship and for the ongoing administration of a guardianship. Your financial and other personal records will be on file with the court. You can have a Power of Attorney and tell your children where it is without actually turning it over to them. You can still make your life choices on your own. You can revoke a Power of Attorney at any time so long as you are still competent.
How do I decide whom to name as my agent in my Power of Attorney?
The agent that you appoint under a Power of Attorney should be someone you trust. In addition, he or she:
- Should not have financial difficulties
- Should be able to get along with others and be able to listen and consider the opinions of others, while still being able to make independent decisions on your behalf
- Should know how you would want your money handled and what your financial plans are
- Should also know where you want to live and how you want to live
- Should be someone who will be responsible to do all that is needed by you and who you trust to do what you would want done on your behalf
- Does not need to be a relative
How do I decide who to name as my agent in my Health Care Proxy?
Your agent should be someone you trust and who understands what kind of medical care you would want if you were unconscious or otherwise unable to communicate your wishes yourself. The agent needs to know under what circumstances you would want life sustaining care, and when you would not want such care. The health care agent that you appoint need not be a relative.
My parents did not sign a Power of Attorney or a Health Care Proxy. They can no longer take care of themselves or manage their money. What can I do so that I am legally able to help them with taking care of themselves and their property?
The answer depends on whether your parents are still competent. If they are, they can create and execute a Power of Attorney and a Health Care Proxy now. If they are no longer competent, you may need to bring a petition for a guardianship in the New York State Supreme Court. The guardianship proceeding is adversarial and counsel will be appointed for your parents. If it is established that a guardian is needed, the court generally prefers to appoint a relative if they can qualify. After being appointed the guardian will make an initial report to the court as to your parents’ assets and condition. The guardian will file a similar report annually with the court and the court examiner. If a guardianship is approved for your parents, they will pay the costs of the guardianship proceeding, the cost of the guardian’s bond and its annual renewal and the fees of the court examiner for reviewing the reports that are filed.