If your family is facing the need for long term care at home, or in a nursing home, one of the first things that comes to mind is do you need the help of an elder law attorney. The big concern is what kind of care is needed. The second is can care be at home, in an assisted living facility, or a nursing home. The third is “how are we going to pay for that care?” The variety of programs for homecare, assisting living and nursing home care, and the qualifications to receive federal, state, or veterans benefits to pay for that, often results in a jig saw puzzle that leads to confusion and frustration. A bonafide elder law attorney will devote most or all his or her practice to elder law issues, and will have staff that understands the problems faced by families, and the solutions. So how can you select a competent elder law attorney?
If you have a serious medical condition such as coronary artery disease or arrhythmia that could suddenly put your life at risk, you probably have a list in your wallet of the prescriptions you take in case of a medical emergency that would render you unconscious and unable to talk with health care providers. That is common sense. But let’s take that a step further and apply it to any adult, no matter their health.
Sometimes small tidbits can save families big money and help keep family caregivers from burning out. Giving parents or a spouse help to stay at home is a common occurrence. But when that help becomes so time consuming that it affects the child’s job or health, it is past time to seek outside help. It does neither the parent or the child any good if the child suffers what is called ‘caregiver burnout.’ Day care is available for some. It gives extra socialization to a parent who is amenable to it, and allows children to keep their paying job. A child who is able to give full time care can be paid for it by the parent, if a written contract is used, so that if Medicaid is ever needed, the money paid to the child will not be counted as a gift..
Everyone hopes their elderly loved ones can remain at home as they age. That is true even when a great deal of care is needed to keep them safe at home. The cost of that care is the problem that families face. Connecticut has some of the strictest rules for eligibility for Medicaid and for the Connecticut Home Care Program for Elders, but the good news is that funding does exist to pay for significant home care, even around the clock care, if the one needing care and a spouse can meet the eligibility rules. The following is an outline of those rules.
There isn’t an attorney alive who wouldn’t recommend that adults have a power of attorney so if they can’t sign important documents, a person they trust can sign for them. A power of attorney can cover almost all financial matters, including bank accounts, stocks, bonds, real estate and applications to government agencies for programs such as Medicaid, housing assistance or veterans benefits. It’s common for people to think that’s for older people, but that is simply not the case. When my older daughter was heading off to Africa to do research on a Fulbright scholarship, accompanied by my daughter Halley Allaire, now in our law firm, I made them do a power of attorney and a living will in case something went wrong. Fortunately, nothing went wrong. And when Halley became a Navy JAG lawyer, some of her first clients were members of the SEAL Team Six, because the Navy command knew they might be incommunicado on missions for periods of time, and if any legal matters came up, they needed a family member or other trusted person to handle things for them. As I wrote in an article many years ago, if it’s good enough to be done by SEAL Team Six, it's good enough for everyone.
Many elderly people add one or more adult children to their bank accounts, or sometimes on the advice of a “helpful” bank employee, who has no idea of the negative side of doing this. First, if that child gets sued, or divorced, or in rare cases simply takes some of that money, it could be gone forever. That child can then write checks or transfer funds and withdraw most of the money. If there are two or more children, that can cause animosity between them. Upon your death the children on a joint bank account do not have to share with siblings, even if your will says everything goes equally. Often people call about transferring their home to their children to protect it if long term care if needed. This is not eliminating risk at all. It is just transferring risk to your child or children. They may not be at high risk of long term care, but they can be sued, get divorced, or die themselves, and they cannot control or prevent any of those things. In addition, there may be tax advantages of having property in your name, or in a trust that has tax clauses that still treat the property as yours for income tax or estate tax purposes. For example, everyone in the U.S. has a $250,000 exemption for capital gains tax on the sale of their personal residence, as long as they have lived in it for two of the five years before sale. That is $250,000 per spouse, or $500,000 total. So a married couple who bought that home for $150,000 could sell it for $650,000 and not pay a penny of capital gains tax. But if it is in the child’s name, and the child does not live in the house, that child will pay big capital gains tax on sale.