The area of Elder Law addresses such a wide variety of issues unique to the elderly population that it requires vigilant study to stay abreast of the ever-changing laws and regulations. In fact, the issues are so numerous and varied that most elder lawyers limit their practices to a few areas, and rely on and refer to a growing network of other elder lawyers to handle matters outside of their areas of expertise.
Perhaps the area of practice that most distinguishes elder lawyers from other legal practitioners is their in-depth knowledge of Medicaid law. While Medicare pays for limited services in the nursing home, Medicaid is the only governmental program that pays for long-term nursing care. Many people incorrectly think that Medicare pays for nursing home care and are very surprised to learn otherwise.
The Medicaid program is financed jointly through state and federal funds, with the federal government assuming approximately 70% of the costs. The average cost of nursing home care in Alabama now ranges from $4000 to $5000 per month.
The Medicaid program is designed for people with limited resources and income. In a nutshell, an individual cannot have more than $2000 in resources, and income cannot exceed a certain level. The rules, however, are very different for single individuals and married couples. As an example, for individuals living alone, the house counts as a resource towards the $2000 limit. For married couples, the house does not count as a resource as long as it is used as the primary residence for the spouse remaining in the community. The community spouse can also retain some of the couple's assets, and can even be allotted an allowance from the institutionalized spouse's income under certain conditions.
As this example alone demonstrates, there is a lot of Medicaid information that needs to be conveyed from the elder lawyer to the client. It takes time and effort to stay current with Medicaid law and to devise a competent plan for long-term care based on each client's needs.
To emphasize this point further, there have been some relatively recent changes in Medicaid law that, if unaware of, can have a devastating impact on potential eligibility. The Budge Reconciliation Act passed in February of 2006 included Medicaid provisions that now severely restrict the ability to protect assets by making gifts. Prior to this change, it was possible to make limited gifts under certain conditions without any great detriment to Medicaid eligibility. Now, however, a penalty period will be imposed for gifts made within five years of nursing home admission and the penalty period does not began to run until the individual applies for Medicaid nursing home benefits.
Another important change under the Act precludes individuals with $500,000 or more in equity in a home to be eligible for Medicaid nursing home benefits.
The above crash course in Medicaid law should demonstrate the unique services that an elder lawyer can provide the older client in developing a solid plan for long-term care. There will, no doubt, be many more changes in the Medicaid program as the elder population increases drastically as the baby-boomers hit retirement age. The elder lawyer must be diligent in staying current with the changes in order to provide the most competent legal advice.
The elder lawyer will tell you that one of the most considerate things that you can do as a parent is to make sure that your Will, Durable Power of Attorney, and Advance Care Directive remain current. It is best to have these three documents prepared in the state where you currently reside, and it is certainly worth the money to have a competent attorney prepare these documents for you.
Everyone needs, at least, a simple Will. The primary purpose of the Will is to tell the world how you want your property dispersed upon your death, and to get your property re-titled to your beneficiaries. Because of changes in the law, you need to update your Will if it is over 25 years old. You should review your Will every five years or so to make sure that it remains current.
Perhaps the most essential document in the elder lawyer's practice is the Durable Power of Attorney. This document allows your appointed agent to handle your affairs should you become physically or mentally incapacitated. It is important to review your Durable Power of Attorney every three years or so.
Finally, the Advance Care Directive is an essential document if you feel strongly that you would not want your body sustained through artificial means under certain circumstances. There were major changes in Alabama law in 1996, and you run a considerable risk if you have not executed a more recent Directive.
While there are many more issues unique to the practice of elder law, time and space limit further discussion. Perhaps enough information has been shared, however, to show the types of issues addressed by elder lawyers. As more and more lawyers are discovering, elder law is a special area of practice that offers rewards far beyond the simple remuneration for services rendered. However, it requires the highest level of dedication and commitment to meeting the growing needs of our elderly population