Menu
Our firm serves clients all over southside Virginia, and has offices in Danville, Bassett and Lynchburg to serve you! Elder law is another aspect of estate planning focusing primarily on the needs of families and individuals as they age. Issues of aging include senior housing and home care, long-term (or nursing home) care, guardianships and health care documents, Medicare and Medicaid.
Medicaid is a joint federal-state program subject to certain federal requirements, each state implements its own regulations on how the program is managed. Medicaid is not an “entitlement” program like Medicare, but rather a form of welfare. Medicaid eligibility is determined after the proper application is submitted to the state.
There are many Medicaid programs available in Virginia, from basic medical coverage to nursing home programs.
We assist seniors and their families in making the tough decisions regarding long-term care planning, including whether Medicaid eligibility may be an option.
Clients are frequently confused over the differences between Medicare and Medicaid. Though their names are very similar, the programs are quite different. Medicare is an “entitlement” program, a federal health insurance program in which most people enroll when they turn 65 years old. There are no financial qualification rules. Medicare has two primary parts: Part A and Part B.
Medicare Part A covers in-hospital care, extended care after a hospital stay, some home health care services, and hospice services. The rules for nursing home coverage are very strict and, in fact, Medicare pays for less than nine percent of nursing home care in this country.
As our population ages, more and more of us confront elder law-related issues, whether for ourselves or our parents. One of the most pressing issues is long-term nursing home care, which usually is not covered by traditional health insurance. Depending on where you live and the level of care needed, nursing home care costs can vary greatly.
In 2020, the national median cost for a private room in a skilled nursing facility was $105,850. The average stay is slightly more than two years. Most people end up paying for nursing home care until their personal (or family) assets are depleted, then they may qualify for Medicaid to pick up the cost.
Careful planning, however, can help protect your assets, whether for your spouse or for your children. The belt-and-suspenders approach is to purchase long-term care insurance while you are healthy enough to qualify, and to make sure you receive the benefits to which you are entitled under Medicare and Medicaid.
Helping a parent move to senior housing can seem more intimidating than orchestrating a rocket launch. The death of a spouse, declining health or safety concerns can trigger the need to move. The first phase comes with the realization that what has been home is no longer suitable. Finding a new home that is both appealing and appropriate is no easy task, and neither is culling through a lifetime’s accumulation of “stuff.”
Here are some tips to help make the transition easier:
Change is life’s only constant. Sometimes these changes strike without warning. If you or a loved one has experienced a sudden illness or serious accident, you understand how abruptly everything can change. Are you or a loved one suddenly in need of nursing home care? Finding and affording quality care on short notice can be stressful and draining. We can help you determine the best options for care and how to qualify for Medicaid to help finance them.
Seek appropriate counsel before you apply for and seek to qualify for Medicaid. We can give you – and your family – peace of mind during a difficult and uncertain time. When dealing with Medicaid, legal advice is something you cannot afford to go without.
Long-term care is expensive, and these costs only continue to increase as baby boomers age. Although the range varies depending on where you live, according to the Genworth Cost of Care Study for 2020 the national median annual cost of a private nursing home room is $105,850 with a 3.57% annual increase since 2019. With improved medical care, the average life span of adults also is increasing; this translates into more years of care at increasingly higher rates. Without some sort of financial assistance, these costs could be financially devastating. In fact, your entire life savings could be quickly depleted within a few years of needing long-term care. This is where Medicaid can help.
Medicaid is a joint federal and state program to assist those with low income and limited resources. While Medicare provides very limited long-term care coverage, Medicaid is much more extensive. However, because of its restrictions, qualifying for Medicaid can be extremely difficult. But paying for a nursing home without it could be all but impossible.
Although Medicaid requirements vary from state to state, they all share one common element: complexity. Each state specifies a maximum allowed income for individuals and couples in order to qualify for Medicaid. Also, the applicant’s total assets cannot exceed a specified amount called the Individual Resource Allowance, which is consistently very low, often as low as $2,000*. Although certain possessions, like your home and automobile, are “exempted” for purposes of determining Medicaid eligibility, this figure is still alarming. If the applicant is married, the process becomes more complicated. For the recipient to qualify for Medicaid in any state, the applicant’s spouse can keep only half the couple’s assets up to a Maximum Community Spouse Resource Allowance of $137,400. So, if a couple has the maximum $137,400** in assets, they must “spend down” to all but $3,000 (or whatever the state Individual Resource Allowance is) for the applicant and $68,700 for the spouse – on long-term care.
What can you do if the value of your “non-exempt” assets exceeds the $137,400* Maximum Community Spouse Resource Allowance? If you give your extra assets away, which seems like an obvious choice, you will encounter greater problems. Violating this “Transfer Penalty Rule” could disqualify you from receiving Medicaid for months or years, depending on how much you gave away.
If your need for nursing home care is immediate, time is not something you can afford to lose. Why? If you wait too long and your non-exempt assets fall below the maximum $137,400 limit, then the applicant’s spouse can only keep half of what is left … with $27,480** as the Minimum Community Spouse Resource Allowance. In other words, $68,700** truly is the Maximum Community Spouse Resource Allowance!
* The Individual Resource Amount varies from state to state.
** Since these amounts (e.g., the “Community Spouse Resource Allowance,” etc.) are adjusted annually, these numbers may vary slightly depending on when the most recent figures are released.
This is only a brief and oversimplified review of a few Medicaid rules, of which there are many more. Navigating them on your own could be a nightmare at best and subject you to penalties at worst. Fortunately, though, our experienced professionals can guide you through the Medicaid maze. Our legal team can advise you throughout the application process, ensuring that you retain the maximum income and total assets allowed by law.
Special Needs Estate Planning focuses on providing for the special needs of our loved ones with disabilities when we are no longer there to organize and advocate on their behalf. Parents of children with special needs must make careful estate planning choices to coordinate all of the legal, financial, and special care needs of their children – both now and in the future.
There are several types of trusts to assist with these special planning challenges. The most common types are Support Trusts and Special Needs Trusts.
Support Trusts require the Trustee to make distributions for the child’s support in areas like food, shelter, clothing, medical care, and educational services. Beneficiaries of Support Trusts are not eligible to receive financial assistance through Supplemental Security Income (SSI) or Medicaid. If your child will require SSI or Medicaid, you should avoid a Support Trust.
For many parents, a Special Needs Trust is the most effective way to help their child with a disability. A Special Needs Trust manages resources while also maintaining the child’s eligibility for public assistance benefits.
There are two types of Special Needs Trusts:
Created using the assets of the parent(s) as part of an estate plan; distributed by a Will or Living Trust.
Generally created by a parent, grandparent or legal guardian using the child’s assets to fund the Trust (e.g., when the child receives a settlement from a personal injury lawsuit and will require lifelong care). If assets remain in the Trust after the child’s death, a payback to the state is required, but only to the extent the child receives public assistance benefits.
Special Needs Trusts are a critical component of your estate planning if you have loved ones with disabilities for whom you wish to provide after your passing. Generally, Special Needs Trusts are either stand-alone trusts funded with separate assets (like life insurance) or they can be sub-trusts in existing living trusts.
Planning for your loved one with special needs requires extensive research to become a well-educated advocate. You will want to keep up-to-date on the latest medical, educational, financial, and legal changes. The Estate & Elder Law Center of Southside Virginia, PLLC provides assistance to you and your family in addressing your unique concerns. Our law firm hopes this Special Needs Resource Center provides you with a quick reference to find the additional resources you may need.
This free handbook explains how a special needs trust can be a very powerful aid in managing care for a family member with a disability. It can provide supplemental items like therapy, respite care, dental work, companions, entertainment, education — all without interfering with the beneficiary’s SSI, Medicaid or other government programs. The special needs trust can be a flexible tool. It can also be very difficult and confusing to administer.
eParent.com is an online resource for the special needs community, including families, caregivers, physicians, allied health care professionals, and teachers.
The Arc is a national organization of and for people with mental disabilities and related developmental disabilities and their families. The Arc works to promote and improve support and services for people with mental disabilities and their families and also fosters research into and education about the prevention of these disabilities in infants and young children.
The National Academy of Elder Law Attorneys is a non-profit association that assists lawyers, bar organizations and others who work with older clients and their families. The Academy provides information, education, networking and assistance to those who deal with the many specialized issues involved with legal services to the elderly and people with special needs.
The National Alliance on Mental Illness (NAMI) is dedicated to improving the lives of persons living with serious mental illness and their families. There are NAMI organizations in every state and in over 1,100 local communities across the country.
The Center for Parent Information and Resources (CPIR) serves as a central resource of information and products to the community of Parent Training Information (PTI) Centers and the Community Parent Resource Centers (CPRCs), so that they can focus their efforts on serving families of children with disabilities. Use this list of states and territories to find the PTI or CPRC that serves your area.
This publication, the first Compendium, focuses on state-level statistics published by federal agencies.
This free questionnaire from Harty Financial can help you project the future expenses of a child with special needs.
We can help you with special needs estate planning. Book a call today!
Guardianships and conservatorships are needed when the individual or family does not have an estate plan to provide for the challenges that accompany illness and aging. This is another reason we encourage everyone to have a properly prepared comprehensive estate plan, regardless of their age and stage of life. A complete estate plan includes a Durable Power of Attorney or an Advanced Medical Directive, and a Healthcare Power of Attorney, along with a Living Will. When prepared and completed in a timely manner, these documents accomplish the twin goals of allowing the individual to state their wishes and name the person(s) they want to take charge of financial affairs and health care decisions if and when they are unable to do so.
If there is no estate plan, or if an estate plan has not been finalized, the family must undertake an application to become a guardian or conservator. These court appointed roles allow a family member or any other interested person named by the court to gain legal control of the person’s financial matters and take an active role in their health care.
A guardianship or conservatorship is also needed when a mentally-disabled child attains the age of 18 and requires the help of a legal guardian or conservator to supervise their adult life.
Because guardianship and conservatorships both require involvement of the court in the person’s life for many years, it is always preferable to have these matters resolved while the person still has legal capacity. If this is not the case, then our aim is to identify possible alternatives to guardianship, which can be onerous.
For instance, if the person’s only income is a government check or a public benefit, in some cases it is possible for a Representative Payee to be named to avoid the conservatorship. That could potentially save thousands of dollars over the years in insurance premiums on surety bonds.
If there are no alternative to guardianship, the first step is to verify the person’s incapacity with a doctor who is experienced in examining patients with cognitive deficits.
Once incapacity has been medically established, our estate planning attorneys draw on our years of experience in guardianship actions to prepare an application for the court.
Among his many other accomplishments, Attorney Robert W. Haley is certified by the Virginia Supreme Court as an approved Guardian ad Litem. In that capacity, Mr. Haley represents the best interests of the potential ward, investigates the case and reports to the Judge of the Circuit Court.
A Guardian ad Litem is a person appointed by the Court to watch after a person, called a “ward,” who has been found to be unable to care for him or herself. But unlike typical guardians or conservators, the Guardian ad Litem (GAL) is appointed to represent the ward in a limited matter. If children sue to have a parent declared incapacitated and request a guardian or conservator, the court may decide a GAL is necessary to represent the parent in the instant case regarding the parent’s capacity or lack thereof. If a person needs immediate care and cannot make decisions on their own, a GAL will be appointed.
n cases of Alzheimer’s Disease or other dementias, people lose the ability to make decisions about their health care, finances or manage the daily activities of living. When that occurs, a guardian is needed to make decisions about the impaired person’s life. Can they continue to live independently, or do they need to be moved to a skilled nursing home? Are they a risk to themselves or others around them?
A traumatic brain injury, a stroke or an auto accident can also lead to incapacity. When this occurs, if there is no estate plan in place with the necessary legal documents, a guardianship is how a parent or spouse, or adult child takes over the care of their loved one.
When needed, an emergency temporary guardianship can be created for someone who needs the support of a guardian but only for a limited period of time. The guardian may pay bills, make medical decisions, and help the person move from the hospital into a rehabilitation center, for example. At the conclusion of a specified period of time, the guardianship will automatically terminate. If it is necessary for the guardianship to continue, the guardian can petition the court to continue the guardianship.
It is also possible to have a limited guardianship ordered by the court. A person who can manage most of the activities of daily living, but cannot keep their finances in order, for instance, may benefit from a guardian who will be solely responsible for their finances.
An experienced guardianship attorney is needed to guide the spouse, adult children, or family through the process. It should be noted that any interested party can apply for guardianship and there is no requirement the petitioner be related to the person they believe in need of help.
Our firm has represented many families where the guardianship was contested by other family members and by people not known to the family. Because notice of a petition for guardianship must be provided to the person, their spouse, adult children, and any interested parties, sometimes people take it upon themselves to be involved who might not otherwise be engaged with the individual.
Once you’re appointed as a guardian or conservator, the real work begins. The court will issue a “Letter of Guardianship” to be used when representing the ward with banks, hospitals, etc., confirming your appointment. Good recordkeeping is critical to protect yourself and your ward as you begin to manage their financial and healthcare needs. Every transaction and decision needs to be carefully documented. Depending upon the court, you may be required to make monthly or annual reports.
Knowledgeable, strong legal representation in the guardianship process is extremely important for a successful outcome. If you have any additional questions, contact today to schedule an appointment.
The Estate & Elder Law Center of Southside Virginia, PLLC serves people with legal needs throughout Virginia, with offices to serve you in Bassett and Danville as well as our newest office located in Lynchburg: The Estate & Elder Law Center of Central Virginia, PLLC.
Certified Elder Law Attorney® Robert W. Haley and staff are ready to help you with mapping out the future through estate planning and medicaid planning/asset protection. Let our firm put our experience and diligent legal representation to work for you!
Click on the yellow dots on the map for more information about our offices.
The 15 minute initial phone call is designed as a simple way for you to get to know us, and for our team to learn more about your unique legal needs. Booking a phone call is an easy way to take the first step to preserve your family’s legacy. Please choose one of the types of phone calls or the office. Then choose a date and time that are convenient for you. We look forward to meeting with you!
Terms of Use | Privacy Policy | Cookie Policy | Accessibility Statement
© 2024 All rights reserved.
Terms of Use
Privacy Policy
Cookie Policy
Accessibility Statement
© 2024 All rights reserved.
