Only hire an Elder Law attorney for Medicaid and long-term care issues.
This is Strategy #6 from Lamson & Cutner’s publication, “25 Strategies to Prevent Financial Ruin from Long-Term Health Care Costs.” Click here to see the other strategies.
Medicaid has a maze of complex rules and regulations. Unless they’re Elder Law practitioners, attorneys are generally not well-equipped to provide accurate advice about the Medicaid system and the strategies that can properly be used to protect clients’ money, property, or income. Adding to the complexity is the fact that Medicaid rules are constantly changing. Only firms whose job it is to keep up with the changes can advise you properly.
“Medicaid Consultants” who offer to help you with your Medicaid application for a lower rate than that charged by an Elder Law attorney are also a real danger. They are not permitted under law to give you legal advice, so they cannot and should not discuss or advise you on many of the strategies that Elder Law attorneys use. Wrong or incomplete advice can cost you a fortune.
Other, non-Elder Law firms, have created trusts for clients, which supposedly protected their assets from Medicaid’s “spend down” rules. Unfortunately, we found that the language in some of these trust agreements allowed the clients to obtain access to principal funds, thereby nullifying any protection the trusts might have provided. Trusts established for long-term care planning require very specific, tightly-worded provisions in order to function properly, and to comply with Medicaid requirements.
An Elder Law attorney is not the same as an Estate Planning attorney. This is based on a misunderstanding of the difference between Elder and Estate Law. Elder Law planning seeks to preserve your money, income, and assets, to be used for your benefit and care while you’re still alive. Estate planning focuses on distribution of your assets, typically in a tax-advantaged manner, after you die.
While Elder Law strategies often can, and should, involve estate and tax planning, the two practices are different. If you may need long-term home or nursing facility care – and most people will – your needs will best be served by an Elder Law attorney.
One other important consideration: an Elder Law firm will have unique and in-depth insight into the rights of senior citizens. For example, in one case we handled, a major bank had convinced a client to put a substantial sum into an annuity. This particular investment was totally inappropriate for an elderly person in his financial circumstances.
Normally, once money is placed in an annuity of the type our client invested in, most of the cash cannot be withdrawn for several years without incurring a penalty. However, we contacted the bank, and informed them that our client needed his money for Elder Law planning. We explained our position that the bank’s recommendation was improper, and asked for the funds to be returned to our client without any withdrawal penalty. The bank complied without a fight.
In another case, our client had accumulated thousands of dollars in credit card debt. We believe it is completely inappropriate for credit card companies to solicit elderly people with certain economic profiles as customers. In this instance, we were able to give the client advice that rapidly resolved her debt issues.
The moral of these stories: there’s no substitute for getting the right advice.
When you do Elder Law and long-term care planning, you need to be comfortable with the firm handling your work. After all, they‘ll be devising strategies that affect your entire life’s savings and every asset you own. Your attorneys should be able to explain what they are recommending and why, in a way that you understand. They should also inspire your confidence, and give you excellent service. In addition to any objective valuation you make, pay attention to your intuition as well. If for any reason you don’t feel they’re the best advocates for you, find another firm.