I WANT TO KNOW ABOUT ELDER LAW

“I wanted to meet with Mr. Callinan to discuss elder law,” said the voice on the other end of the phone.

My law clerk tried to prompt the woman to explain what exactly it was she wanted to discuss with me, but the woman insisted that she wanted to discuss elder law.

Elder law is a fairly broad practice area, and the phrase “elder law” often means different things to different people – even to those lawyers who practice elder law. I probably receive a call a day at my office from a potential client who wants to discuss “elder law” with me.

When a person says they want to discuss “elder law,” they could mean that they wish to discuss any one of the following issues: estate planning (Wills and Trusts), Medicaid planning, a will contest issue (i.e., litigation), estate administration, a power of attorney, a living will, or a guardianship matter. Or, to make matters more complicated, they may wish to discuss some combination of the above.

Most of these calls are really inquiries about Medicaid and Medicaid planning. The person is curious about how they can “stop Medicaid from getting their money.” Quite frequently, the caller has no pressing long-term care concerns. He or she either is elderly and worried about needing long-term care someday or is the child of an elderly parent who – the child fears – may some day need long-term care.

But knowing that does not mean that the issue has been narrowed sufficiently for discussion. The laws governing Medicaid are very complex. If a person has no current need for long-term care or no plans for such care, it is very difficult – if not impossible – to have a productive discussion with the person regarding Medicaid and Medicaid planning.

I have mentioned in previous columns that it is a good thing when people plan early for Medicaid – the longer you wait, the more time you’ve wasted. I’ve also mentioned that determining when your time to plan has arrived is very difficult. None of us knows when we might need long-term care – or if we will ever need long-term care.

The problem is, most people think they will never need long-term care, so they fail to plan. While it is very difficult to plan for the sudden onset of illness – say, a broken hip suffered after a traumatic accident – someone suffering from a degenerative disease, such as Alzheimer’s or Parkinson’s, should beginning exploring planning options.

But simply accepting that you may need to plan for long-term care doesn’t mean that you need to explore Medicaid planning quite yet. In order to plan for Medicaid, you must relinquish a tremendous amount of control over your assets. In large part, Medicaid planning involves gifting your assets – in one form or another – to family members or friends. Few people want to relinquish control of their assets unless they absolutely need to do so.

So, there are two reasons why people fail to plan for long-term care. On the one hand, they don’t believe they’ll need long-term care. On the other hand, even if they accept that they will need long-term care someday, they don’t want to relinquish control of their life’s savings. These two issues prevent most people from planning until they’re already in a long-term care facility. At that time, they’ve accepted the fact that they need to plan.

With that said, how do I suggest you approach the issue of planning for long-term care needs, either your own or an elderly family member’s? The first thing that I suggest you do is explore care options.

Call home health care agencies, ask them what services they provide and the fees they charge. Visit assisted living residences and nursing homes. Ask about their services, their fees, and whether or not they accept Medicaid. Talk to your – or your family member’s – doctor. What does he or she think about your health and your health needs?

Then, if you’ve accepted the fact that long-term care may very well be on your horizon and you know what type of long-term care you need, call an elder law attorney to discuss planning options that will get you the care you need and save your assets from the costs of that care.