What is a Certified Elder Law Attorney ELA), and Why Does it Matter

Robert W. Haley is one of only 15 attorneys in Virginia who have achieved the status of certified elder law attorney (CELA). He is the only CELA west of Richmond practicing in Southside Virginia.  But what does that certification mean.  Certifications are a dime a dozen aren't they? 

It’s true that many senior certifications are pretty much meaningless. They may signify nothing more than that the advisor took a marketing course and paid a fee to become "certified". The risk that consumers may be mislead into believing that the advisor has some special knowledge or ability is not insubstantial. A provision in the recently enacted Wall Street  Reform Law and Consumer Protection Act orders the Comptroller General to conduct a study of "the possible risk posed to investors and other consumers by individuals who otherwise use titles, designations, or marketing materials in a misleading way in connection with the delivery of financial advice." (Section 919C(b)(4)).  

Covering the costs of long-term care can be confusing.  Many people have no idea they can become eligible for Medicaid!   It is important to know the facts since there are many misconceptions about the program.

2) I can only "spend down" my assets on medical and nursing home bills.

In fact, attorneys specializing in elder law can often give valuable advice on purchasing non-countable assets which can benefit you or your spouse, for instance, pre-paying for burial arrangements and making home repairs. In addition, you may be able to make certain transfers to family members. 

If you or a friend or loved one needs long-term care coverage, we can screen their assets to see if they can become eligible for coverage.  Call for an appointment today!

Medicare does not cover the cost of extended nursing home care. Therefore, if you or a loved one is facing the possibility of a prolonged nursing home stay, other payment options must be considered. Most people entering nursing homes today do not have long term care insurance. Since private payment can average over $80,000.00 a year in our area, most residents are forced to turn to Medicaid at some point. It is important to know the facts since there are many misconceptions about the program.

Ten Common Myths:

 1) I will have to spend everything I have and sell all my property to qualify.

You don't have to be completely destitute to qualify for Medicaid. While the limit for "countable" assets is very low ($2,000.00 or $4,000.00), there are many assets that are considered excluded. These include a car, personal belongings, and some life insurance or a burial plot. If you have a spouse or dependent children, then the house they live in and other property is protected.  Further we utilize proven strategies to protect your assets form the costs of long term care!

Next Myth: I have to spend down my assets in order to qualify for Medicaid. 

We recently had a potential client that had been referred to us by a financial planner.  Evidently, it is the custom of this firm to give three names of estate planning attorneys so as not to favor one over the other.  The referred client made an appointment and then later called back to cancel her appointment because one of the others attorneys would do her documents cheaper.

I just want to point out that as Southside Virginia's only Certified Elder Law Attorney, I also have an eye toward the need for asset protection in the future, not just the drafting of estate planning documents.  How this difference is routinely manifested is seen in three ways:

It is with mixed emotions that we announce the resignation of my associate, Jessica S. Henson from the Estate & Elder Law Center.  Jessica has practiced law here with us ever since her graduation from law school and has been a valuable member of our firm.  However, our loss is Henry County's gain as she will become an Assistant Commonwealth's Attorney in the Commonwealth's Attorneys office.

It has been a pleasure watching Jessica begin her law career and grow as an attorney.  She is a very diligent lawyer and always gave her clients the best representation possible. I want to thank Jessica for her years with us and wish her and her family nothing but the best! 

As I conclude an estate planning consult, I always segue the conversation toward asset protection.  Estate planning addresses death and incapacity, but only asset protection planning addresses the need for long-term care due to failing health.  I always try to warn clients of events that can cause problems for them down the line.  The biggest potential problem? The hiring of caregivers in the home.

Now, let me preface this by saying that if you hire an agency such as Privacare, Team Nurse, Commonwealth Home Health care, etc.  there will be no problems.  However, if you wish to hire an individual, there are two potential problems: Taxes and the IRS and Medicaid eligibility.

Clients ask me all the time how best to protect their assets from the rising costs of long-term care.  That could lead to a conversation about irrevocable trusts, qualified irrevocable annuities, Medicaid asset protection trusts, etc.  But there is one simple act everyone can do to potentially save tens of thousands of dollars:  consolidate your assets in one or two locations.

When we are involved in "crisis planning", someone has already been admitted to the long tern care facility and are paying the bill privately.  That bill could be anywhere from $5500 to over $8000 dollars a month!  Thus, time is of the essence in re-structuring your assets to secure Medicaid eligibility.   The first thing we do is create a List of Assets. This is a list of everything you own: real estate, bank accounts, IRAs or 401Ks, insurance policies, certificates of deposit, etc. If each asset is being held in a different institution, the process of restructuring can be complex, tedious and most devastating, time-consuming!

When it comes to making a Will, disinheriting a child with Special Needs is NOT the answer!

Inexperienced or incompetent estate planning attorneys have a bad habit of telling parents of children with special needs to simply write their child out of their estate plan altogether in order to ensure that the child will qualify for government benefits when the parents pass away.  While this approach might accomplish the goal of preserving government benefits, it is almost always the wrong way to help a child with special needs.

There are three main government benefits available to people with special needs - Supplemental Security Income (SSI)Social Security Disability Insurance (SSDI) and Medicaid.  A fourth benefit, Section 8 housing, is often available for people with disabilities who can't work.  One of these programs, SSDI, does not set any limits on a beneficiary's unearned income or assets, so a family of a child with special needs could theoretically leave a full inheritance outright to a child who receives only SSDI with no impact on that benefit, although there are other reasons why this is a bad idea.  The other three programs -- SSI, Medicaid and Section 8 -- are all means-tested programs with very strict income and asset limits, so the parents of a child who receives these benefits are rightly concerned about leaving money directly to the child because an inheritance could end access to any one of these vital programs.  But simply writing a child out of an estate plan is not the right solution to this problem.

For one thing, SSI and SSDI provide small cash benefits that might not be nearly enough to support a person with special needs.  In these cases, not leaving an inheritance to that child could severely limit his opportunities after the death of his parents.  Secondly, government benefits are subject to the whims of Congress and the President, so benefits that fully provide for a child with special needs today could be eliminated or severely cut back in the future, at which point a child with no inheritance could be left destitute.  Lastly, although SSI, Medicaid and Section 8 all have some form of asset limits, these can be avoided through appropriate special needs planning.

So instead of disinheriting a child with special needs, parents should almost always establish a Special Needs Trust for that child's benefit.  When properly drafted by a qualified special needs planner, these trusts will hold a child's inheritance so that it can be used to supplement her government assistance without causing the child to lose her benefits.  Special needs trusts can also receive life insurance benefits and, in some cases, retirement funds, so that families without a lot of fully liquid resources can still provide for their children with special needs.  These trusts also work well for SSDI beneficiaries or other people with special needs who may not receive any benefits at all, because they provide oversight of spending and protect the beneficiary from financial abuse.

If you've disinherited a child with special needs in your previous estate plan, or if an estate planner is telling you that you should be leaving a child with special needs out of your plan, then it's time to sit down with a qualified special needs planner to discuss better options.

Special Needs Trust can provide for future needs all while retaining benefits and is part of proper Estate Planning. Contact us to schedule an appointment  for more information on how we can help you plan for the future!

We all have seen them: Retirement communities that offer you everything from a standalone home to 24/7 long- term care and all residential choices in between.  These continuing care retirement communities (CCRCs) certainly have a place in long term care planning and serve many families well.  In our area, we all know of King's Grant and Stratford House.  They offer amazing facilities that serve their residents well!

When you enter a CCRC, you are asked to sign a contract.  It is vital you read and understand the contract.  In my years of practice, I have reviewed numerous CCRC contracts and know that each community's contracts  are different and that you can always negotiate for changes or amendments.  

"80% of adults over 65 who fall will never live independently again." This is a video about creating new pathways in your brain as you grow older with steps toward preventing Alzheimer's and Parkinson's disease, and preventing falls and injuries.

Inventor, athlete, renowned ceramic artist and retired college arts professor Stephen Jepson is in his 70's and has a unique approach to making the most out of life.  Staying active and continuing to play, even as an adult, is key to maintaining balance, increasing energy and memory, at anyage! Quite an inspiration!

Click here to see the interview as originally featured on the Growing Bolder website!

People ask me all the time what is an “elder law attorney” and how is it different?  The best answer to the question is the perspective of an elder law attorney.  We not only look at a client’s present situation, we always have an eye to the future.

  • The risk of nursing home placement increases with age—31% of those who are severely impaired and between the ages of 65 and 70 receive care in a nursing home compared to 61% of those age 85 and older.
  • In 2002, there were 1,458,000 people in nursing homes nationally. Older individuals living in nursing homes require and receive greater levels of care and assistance. In 1999, over three-quarters of individuals in nursing homes received assistance with four to six Activities of Daily Living.
  • Of the population aged 65 and over in 1999, 52% of the nursing home population was aged 85 or older compared to 35% aged 75–84, and 13% aged 65–74.
  • Between 1985 and 1999 the number of adults 65 and older living in nursing homes increased from 1.3 million to 1.5 million. In 1999, almost three-quarters (1.1 million) of these older residents were women.
  • The probability that a person aged 65 or older will need some form of long term care is 68%.