Elder law is a multi-faceted practice, so an elder law attorney may offer a wide variety of legal services. Elder law attorneys may handle several sub-fields within elder law, such as:
- Estate planning: A sub-field which includes lifetime planning with advance directives, such as Powers of Attorney, Health Care Proxies and Living Wills, legacy planning, tax planning, asset protection, and general dispositional planning with the use of Wills, Trusts and Testamentary Substitutes.
- Medicaid Planning: A sub-field which includes disability planning and long-term care planning.
- Probate Litigation: A sub-field which may include simply applying to the Surrogate’s Court to probate a Will for the issuance of Letters Testamentary, or it may be as contentious as an opposing party preventing the submission of the Will for probate, or questioning the Will’s validity and its appointments.
- Guardianship: A sub-field which includes the appointment of a guardian or co-guardian for an alleged incapacitated person, to provide for his personal and property management needs. In most cases, Powers of Attorney and Health Care Proxies were not prepared necessitating the need to bring a proceeding. The order will only authorize the Guardian to perform those tasks for which the individual is incapable of doing so himself.
An individual elder law attorney may practice in all or some of the sub-specialties I mentioned. Some attorneys may focus on Guardianship accountings, or Probate litigation or Medicaid planning, Fair Hearings and Appeals. The disciplines are interrelated so that an Elder Law attorney may utilize more than one practice area to accomplish a goal. For instance, in my own practice, I often offer Medicaid planning. However, in order to achieve that goal, when legal documents have not been prepared, it may be necessary to undertake a guardianship proceeding.
Can An Elder Law Attorney Help Me With New York Medicaid Planning?
Yes, an elder law attorney in New York should be knowledgeable about the rules of New York Medicaid and should be able to help you with Medicaid planning in New York.
Medicaid is the payor of last resort for long-term care for those who are 65 and older and/or disabled. So, when we talk about Medicaid, we are really talking about making someone eligible so that they qualify for long term care assistance at home or in a nursing home. Medicare is your health insurer and should not be confused with Medicaid.
Within Medicaid, home care is referred to as the Community Medicaid Program, and nursing home care is referred to as the Chronic Care Medicaid Program.
An elder law attorney will be able to tell you whether you need Medicaid, which program will meet your needs and what steps you need to take to make yourself Medicaid eligible.
Can A Suffolk County Or Nassau County Elder Law Attorney Help Me Petition For Guardianship?
Yes, many Suffolk County or Nassau County elder law attorneys are able and willing to help you petition for guardianship, presumably for a spouse, parent, or loved one.
However, it should be noted that not all Suffolk County or Nassau County elder law attorneys will facilitate guardianships. As mentioned above, elder law is a multi-faceted area of law which encompasses many sub-specialties. Some elder law attorneys simply will not handle a guardianship proceeding simply because they focus on different practice areas.
Any elder law attorney with whom you consult will review the case to ascertain whether a guardianship is warranted. This is an essential part of the guardianship process, which is a safeguard in preventing unnecessary or inappropriate guardianships from being instituted. If a guardianship is commenced when it is not warranted, both the attorney and the guardian may be subject to financial consequences, including court costs and opposing counsel’s attorney’s fees.
Having said that, however, an appropriately issued guardianship Commission is a life saver to the appointed guardian who is planning for the personal and property management needs of the incapacitated person. It is the key to meeting those needs. They may include obtaining Medicaid assistance, residency in group housing, making decisions and even accessing the funds for that individual’s needs.
Can An Elder Law Attorney Help Me With The Necessary Legal Steps If My Mother Or Father Was Recently Diagnosed With Alzheimer’S Disease?
Yes, many elder law attorneys will be able to help you take the necessary legal steps if you have a parent that has recently been diagnosed with Alzheimer’s disease. Elder law attorneys are trained to be very cognizant of capacity. If a potential client or the parent of a client has Alzheimer’s, the attorney will meet with the Alzheimer’s patient for an initial face-to-face. During that meeting, the attorney will observe the client and note his ability to respond to questions and to participate in conversation. They will use that information, as well as information from the family and from the client’s medical team, whether the individual has the requisite capacity to undertake estate planning.
An estate attorney will also know that there are different capacity thresholds. For instance, in order to participate in or consent to the creation of a Will, the capacity threshold is lower than it is to participate in the creation of a Trust or Power of Attorney, which are contractual in nature.
What Should Be The Goal Of Long-Term Care Planning, Or Proper Elder Law Planning?
The goal should be to set up an Estate plan that not only ensures that your resources and income are passed down according to your wishes, but that they will be preserved during your lifetime, notwithstanding illness or the need for long term care. This is the biggest obstacle for an individual that sets up only an estate plan, with a Will, for example, but does not take into account a medical emergency prior to death. If you become ill, everything that you own could be “subject to a spend down” in New York. This means that without proper Medicaid planning, you may be required to spend all or nearly all that you own before you may qualify for Medicaid in paying for long-term or serious medical care.
So, the goal for a proper long-term care plan would be to meet with counsel at least 5 years prior to needing serious long-term care. Of course, no one knows if and when they’ll need Medicaid. But certainly, when you are healthy and there are no imminent risks of a chronic disease or a condition that might land you in a nursing home, you are in a much better position to plan. Advance planning is extremely important.
Advance planning is even more important since October 1st, 2020, when New York State instituted a change in the Community Medicaid law. Specifically, this change included adding a “look back period.” This practice has not yet been effectuated but may be in the coming years. Previously, those who needed Community Medicaid were able to come into an Elder Law attorney’s office, undertake a Medicaid plan the month before applying and then be approved. What the “look back period” means is that an applicant for Community Medicaid (home care) will be ineligible if he gives away assets within 30 months of applying because Medicaid will look back during such period for those disqualifying transfers. Only time will tell if the Department of Health implements this change of law.
Applicants for Chronic Care Medicaid (i.e., nursing home care) continue to be subject to a 60 month look back period for asset transfers.
The goal would be to undertake advance planning ideally at least 5 years (or 60 months) prior to applying for Medicaid.
Be advised, however, that even without advance planning, an Elder law attorney could protect between 40% to 60% of what you own, in what is referred to as last minute planning, or crisis planning.
For more information on Elder Law Matters in the State Of New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (631) 800-0472 today.
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