What is Elder Law?

Elder law is really a unique practice area. It combines a number of different legal issues to help older adults and their families address the issues which come up in the aging process. Typically, elder law attorneys will go beyond just traditional legal advice and really act as a referral source for their clients. They want to be a resource to assist them with the aging process. They may be giving them advice on issues which do involve legal complications, like Medicaid, Medicare, advance directives, and healthcare issues or planning for incapacity, but they could also be connecting them with community resources to assist them with finding a proper placement as they age for housing, determining what community resources can be brought in to keep the individual independent as long as possible, and really assist them in matching resources to meet that older adult’s needs so that they can age in place and remain autonomous and independent for as long as possible.

Elder law is really a unique practice area. It combines a number of different legal issues to help older adults and their families address the issues which come up in the aging process. Typically, elder law attorneys will go beyond just traditional legal advice and really act as a referral source for their clients. They want to be a resource to assist them with the aging process. They may be giving them advice on issues which do involve legal complications, like Medicaid, Medicare, advance directives, and healthcare issues or planning for incapacity, but they could also be connecting them with community resources to assist them with finding a proper placement as they age for housing, determining what community resources can be brought in to keep the individual independent as long as possible, and really assist them in matching resources to meet that older adult’s needs so that they can age in place and remain autonomous and independent for as long as possible.

What is an advanced directive?

Advanced directives are documents which instruct an individual’s family, their friends, their health care providers, as to the treatment the individual would want to receive if they have a terminal illness or if they’re otherwise unable to consent to medical decisions themselves. Advanced directives include things like an appointment of health care representative, a living will, a post form, a do not resuscitate form, things like that.

What is a living will?

A living will is a document in which an individual can indicate their preference on whether or not they would like their lives to be artificially prolonged through the use of tubes or machines if their attending physician has certified that they have an incurable injury disease or illness.

Do children have to pay for parents in nursing homes?

A lot of the families I consult with are concerned that they’re going to have to take on the costs of their parents’ care. In most states, the answer is no. If the individual does not have the means and income to pay for their own care, they’re typically going to be eligible for Medicaid or, in the case of a veteran, they may be eligible for veterans’ benefits to assist with the costs of care. You should be aware, however, that some states do have what are known as [philial 00:28] responsibility statutes, which may require the children to pay for their parents’ in the event they run out of money. In Indiana, for example, such statute exists, but we don’t enforce it currently. But, there are other states like Pennsylvania where that statute may be enforced and require the children to provide for the cost of their parents’ care.

So, make sure you seek out good council with regard to the potential need for support of your older loved ones.

Is there a citizenship requirement for Medicaid?

Yes, medicaid does have a citizenship requirement. In order for an individual to be eligible, they are required to be a United State citizen, but there are circumstances which would allow a non-citizen to receive coverage. Typically, lawful permanent residents who have a green card are eligible for medicaid services if they have been in the United States as lawful permanent residents for five years. Individuals who are here unlawfully or are not permanent residents are also available for medicaid but only for limited emergency services. There is a group of individual who could receive medicaid coverage though. If they are a particular group of refugees or aslyees who have come to the United States. You’d want to consult with an elder law attorney to be sure that you fall into one of those categories.

Will Veteran’s Benefits Pay for Assisted Living and Nursing Home Costs?

Veteran’s benefits can help pay for the costs of assisted living and nursing home costs. Typically when an individual needs care in an assisted living or nursing home facility, their costs of care are going to be substantial on a monthly basis. to the extent that their care costs exceed their monthly income, then the Veteran’s Administration can provide a pension to help fill the gap between their monthly income and the cost of care, but the Veteran’s Administration pension does have a limit and it may not fill the complete gap. There specific limitations both for income and for assets which would be required to be fulfilled in order to be eligible for help through the Veteran’s Administration in addition to the service requirement which means that the veteran must have served at least one day during an active time of war in a branch of our armed forces and was honorably discharged.

Will the Government or state take my house if I go into a nursing home?

The answer to that question is no. Many people are concerned that a nursing home or the Government will take their home, but the answer to that question is no. In order to be eligible for Medicaid the home may be a countable resource, but in Indiana if that home is listed for sale or rented when that individual is trying to qualify for Medicaid, then its an exempt resource. At the time that the individual passes away, the state may however have a claim against the home up to the amount that the individual had services paid for care by the State under its Medicaid program. So it is possible for a lien to be placed on the property, but Medicaid cannot force a sale of the property if the individual goes into a nursing home. Its just that in order to be eligible for Medicaid, they may later be required to list the home for sale or rent in order to be eligible for Medicaid if they don’t have private funds to pay for the costs of their care.

I am single. What happens if I have to go to a nursing home?

Single individuals who go into a nursing home are often concerned with the cost of their care. Most nursing home costs in Indianapolis run around $7000 per month. So it doesn’t take long to go through assets, but that doesn’t mean that all assets have to be spent down. It’s a good time for family members to consult with an elder law attorney and see if there are ways to protect some that single individual’s assets. We want to make sure that certain assets are set aside to provide for things that aren’t covered by Medicaid, like toiletries, or new clothes. Or what if the individual hasn’t prepaid for his or her funeral? There are a number of ways to provide for the individual in a nursing home, and also to lawfully preserve assets. But, you need to seek out guidance to do this correctly.

Regarding Medicaid, what does spend down mean?

Medicaid has strict financial eligibility requirements. In most states in order for an individual to be eligible, they can only have a certain amount of countable resources. In Indiana for example, that resource limit is $2000 for an individual applying for Medicaid. Or for a married couple, if both spouses need Medicaid, that resource limit is $3000. So spend down refers to the process of spending assets for the individual in order to meet that resource eligibility limit.

Am I allowed to keep all of my Social Security and pension if I am in a nursing home and Medicaid is paying for my care?

The answer to that question is no. Medicaid typically pays the difference between the individual’s monthly income and the cost of their care. Social Security and pension which is the individual’s monthly is going to be paid to the nursing facility each month, and that represents what we call the person’s liability. That’s the individual’s share of their monthly cost for the nursing home. Medicaid will then pick up any remaining amounts which are due. While an individual will have to pay their monthly income to the nursing home, there are certain amounts of income that they get to keep back. Typically they get to keep around $52 for a personal needs allowance to help pay for things like haircuts in the nursing facility, and enough monthly income to pay for the costs of any supplemental or prescription insurance that they pay for.

What is the penalty or disqualification period for transferring property?

Medicaid looks back for five years from the date of a Medicaid application to determine if an individual transferred or gave away assets which could have been used to pay for the costs of their care. If they did give away assets during that period, that could trigger a transfer penalty during which the individual will not be eligible to receive pay for room and board in a nursing facility because they gave away assets which could have been used to pay for the cost of their care.

Not every transfer is going to trigger a transfer penalty. If a transfer was made for the purpose other than qualifying to Medicaid or if the transfer was made to a spouse or to a disabled child, a transfer penalty may not be imposed. The way we determine the transfer penalty, actually, is we divide the amount transferred by the penalty divisor set forth by the Medicaid office. In Indiana this year, that penalty divisor is $5,923, and we divide the amount of the gift by that amount to determine the months and days during which a person would not be eligible for Medicaid because they gave away funds which could have been used to pay for their care.

That penalty will not beginning running however until the individual is in a nursing home and is otherwise Medicaid eligible but for the transfer they made. So, it’s important to consult with an elder law attorney to assist you with this process because you don’t want to be in a position where you are in a facility and you need Medicaid eligibility, but you won’t qualify because you gave away money and that penalty is only now beginning to run. You want to make sure you can complete a transfer lawfully and have funds to pay during any penalty period.

Elder Law Forms

Elder Law Resource Links

Albert & Sara Reuben Senior and Community Resource Center

Alzheimer’s Association

Alzheimer’s and Dementia Caregiver Center

ARC of Indiana

Area Agencies on Aging in Indiana

CICOA

Developmental Disabilities and Autism Medicaid Waivers

Direct Donor Program – State of Indiana Anatomical Education Program

Elder Care Locator

Elder Law Answers

Funeral Planning

Indiana Laws of Aging

Indiana Long Term Care Facilities

Indiana Long Term Care Insurance Program

Indiana Medicaid

Indiana Organ Procurement Organization

Indiana Unclaimed Property

Meals on Wheels Central Indiana

Medicare and Home Health Care

National Academy of Elder Law Attorneys (NAELA)

National Association of Professional Geriatric Care Managers

National Institute on Aging

Out of Hospital DNR Order Form

Report on Ethical Issues in Dementia Care

Savings Bond Calculator

Social Security Handbook

State Health Insurance Program

Understanding Dementia and Driving

United Senior Action Discount Prescription Program