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FAQ: Elder & Disability Law: Asset Protection

What is Elder Law?
At Marks Elder Law, practicing Elder Law means meeting all the typical legal needs of elderly and disabled clients. More specifically, Elder Law often means planning and fighting to accomplish three principal goals:
  • First, to secure needed high quality health care services and benefits for elderly and disabled patients;
  • Second, to minimize the costs to you and your family, so that you keep as much of your own money as possible; and,
  • Third, to take care of your general estate planning needs, such as Wills or Powers of Attorney, admission agreements or contracts, and other legal needs.

Why do I need an Elder Law Attorney?
An elder law attorney has the training and experience to help you to obtain needed care as the first priority, and also save money at the same time. No one else in our system of long-term care wants you to know about the steps that can be taken to protect yourself. Nursing homes and government agencies want you to spend all of your own money first.
Who does an Elder Law Attorney Represent ?
At Marks Elder Law we almost always represent the patient who needs care and services and their spouse, rather than the patients children or other family members, though we often work with their children on their behalf. Representing the parent, or patient, makes the most sense, by far, ethically, and makes it clear that we work to serve their best interest.
What is Long Term Care?
Long-term care is care provided for persons with chronic illness or disability for a lengthy, indefinite or permanent period of time. It includes custodial or residential care in a facility , institution or in a private home. It is different from a short-term stay for recovery or rehabilitation from a temporary illness or injury.
How can I pay for nursing home care or long-term care?
There are three basic options:
  • Use your own money to pay on a private pay or self pay basis;
  • Pay with benefits from a private long-term care insurance policy that you purchased in advance; or
  • Pay with benefits from a government program, such as Medicare, Medicaid, VA benefits, etc.

How does Medicare differ from Medicaid?
Medicare is a Federal government entitlement program that accompanies Social Security, and that generally pays for doctors and hospitals, and, beginning in 2006, for prescription drugs. Medicare does not pay for long-term custodial care. Medicare only pays for temporary stays in a nursing home for rehabilitation or recovery after an illness or injury, only following a qualifying stay in a hospital, and within certain limits.  Medicaid is a combined State and Federal government benefit program for people who cannot pay for certain kinds of needed health care for themselves. You must apply for and qualify to be eligible for Medicaid based on factors including your assets and income. Medicaid can pay for long-term nursing home care but does not pay for lesser levels of care, such as assisted living. As Medicaid is often the only benefit available to pay for the costliest levels of care, our planning is often directed toward Medicaid eligibility to pay for nursing care.
Can I protect my savings and assets?
A key question: the Medicaid laws and rules require that you spend almost all of your own money first, before you are eligible for Medicaid to pay for your care. However, with proper planning, families can often keep more of their savings and assets, than without planning.
Will my kids have to pay for my care?
While planning for patients and spouses to obtain needed care, we also try to protect other family members from liability for payment. If you are not eligible for Medicaid benefits, your children often must help pay for their parents care voluntarily, from their own assets and savings. Pennsylvania has recently taken steps to try to require that children pay for their parents care but the future of such attempts is unknown..
What is long-term care insurance?
Long-term care insurance is a private insurance policy that will pay benefits for long-term care or custodial care. Not all policies are the same; you can buy a basic policy or you can buy a better policy that pays more or covers more. Policies can pay benefits for different levels of care skilled nursing care, assisted living or personal care residence, or for care and services in your home.
How much will long-term care insurance cost?
The younger you are when you buy it, the lower the premium will be. The cost depends on the specific features of the policy that you buy and on your age. Policy features that determine the cost include the benefit amount and how long the benefits are paid. Extra features like inflation protection or return of premiums can add to the cost.
Can we protect any of our savings and assets if my spouse needs nursing home care?
You can. Married couples do not have to spend all of their money on care for the spouse who is ill. Medicaid rules say how much of the couples resources can be kept: for the spouse who is not ill and is still living at home (community spouse); and how much a couple must spend for the care of the spouse who is ill (the institutional spouse).
Can we protect any of our savings and assets if my spouse needs nursing home care?
You can. Married couples do not have to spend all of their money on care for the spouse who is ill. Medicaid rules say how much of the couples resources can be kept: for the spouse who is not ill and is still living at home (community spouse); and how much a couple must spend for the care of the spouse who is ill (the institutional spouse).
How much can a couple keep?
To receive Medicaid benefits, a married couple must spend one half of their available resources (as determined by Medicaid rules) for the spouse needing care; and can keep one-half for the spouse living at home, subject to a minimum of approximately $19,000, and a maximum of approximately $90,000 subject to further adjustments. One goal of elder law planning if often to maximize the amount a husband or wife can keep.
Will they take my money to pay for my nursing home care?
Usually, the only time that they may take someone money is after a Medicaid patient has died. Under a program called Estate Recovery, Medicaid has a claim to be reimbursed the amount of benefits paid during the patients lifetime, but only from the patients probate estate assets. Non-probate assets that pass by joint ownership with right of survivorship, or to a pay-on-death beneficiary, outside of probate, are not subject to the claim (see our Estate Administration brochure for definitions and details of this.).
I don't want to go to a nursing home. Can I stay at home? Who will help pay?
A distinct current trend is for government to increase funding for home and community-based services in order to provide skilled nursing and other care for patients in their own homes. This is a win-win situation the patient gets to stay at home, where almost everyone prefers to be, and the care costs less than residential care in a nursing home, both for the patient and for the benefits or care provider.