What Is Elder Law?

Elder law is an outgrowth and adaptation of the Trusts and Estates legal practice. While the Trusts and Estate attorney focuses his/her practice in ensuring that a client’s assets transfer from one generation to the next, an Elder Law attorney focuses on the preservation of a client’s assets, both during the client’s life and after death. The central focus of an Elder Law attorney is planning for a client’s long-term care needs.

Long-term care planning is achieved by transferring and structing assets in such a way that the client qualifies, or will qualify in the future, for Medicaid benefits. Because Medicaid benefits pay the costs of having an at-home health care aide provide assistance to the client at home and/or the expenses of a nursing home stay, qualifying a client for Medicaid benefits ensures the client’s long-term care needs are met.

Because Medicaid is a “means tested” program, in order to qualify for Medicaid benefits, a client can only have limited asset and income. By employing trusts and gifting strategies, a client is able to divest themselves of their assets while ensuring these assets are available to trusted loved ones.

The exact strategy employed in transferring and structing assets varies from client to client. If the client is in good health and planning for future needs, typically a trust is used. For these clients, assets will be transferred into the trust to begin the “five-year lookback period” running. For clients who are currently in need of assistance in paying for at-home health care aides and/or the cost of a nursing home stay, the planning required is usually very different, and may involve transfers to a trust and/or using the “note-gift strategy.”

When seeking Medicaid benefits, clients must disclose their assets and income on a Medicaid application. If the client seeks only assistance in paying the cost of at-home health care aides, the client is only required to provide proof of current assets and income if applying prior to October 1, 2020, or, if applying on or after October 1, 2020, 30 months (2.5 years) of asset and income statements. If the client seeks assistance in paying for nursing home care, the client must provide 60 months (5 years) of asset and income statements. Because the statements provided with the Medicaid application are reviewed by the local Department of Social Services to ensure no gifts have been made during the preceding 30-month (2.5) period, if applying for at-home services, or during the preceding 60 months (5 years) if applying for nursing home services, these periods are referred to as “look back periods.”

With a client who is in good health and looking to plan for his/her long-term care needs, the goal of Elder Law is to “beat” the look back period by transferring assets well in advance of the need for Medicaid benefits and long-term care. When, however, a client is currently ill, care must be taken to ensure qualification for benefits while preserving as much assets and income as possible.

I’m Not Elderly. Do I Really Need An Elder Law Attorney?

Great question. An Elder Law attorney’s goal is to look prospectively at the potential need for long-term care and, therefore, the young, healthy client is typically able to preserve nearly all their assets if he/she engages in Elder Care/Long-Term Care Planning early on. Because of the applicable “look back periods” when applying for Medicaid, a young, healthy client can transfer and structure assets now to help ensure he/she will “beat” the “look back period” when/if Medicaid benefits are sought.

By way of example, if a healthy 55-year-old client meets with an Elder Law attorney and engages in Long-Term Care Planning by transferring his/her assets into an appropriate Medicaid Asset Protection Trust, this client should more easily qualify for Medicaid benefits in 5 years.

The sooner a client begins thinking about Elder Law/Long-Term Care Planning the greater the chances this client will qualify for Medicaid benefits without penalty or periods of denial.

How Much Does It Cost To Hire An Elder Law Attorney In New York?

The cost to hire an Elder Law attorney in New York depends upon the client’s goals. Typically, when engaging in Elder Care Planning, the client is best served by creating a Medicaid Asset Protection Trust and having the attorney oversee and coordinate the transfer of assets into the Medicaid Asset Protection Trust. However, in addition to the above, clients are typically well advised to create a Last Will and Testament, Power of Attorney and Health Care Proxy to ensure their estate needs and advanced planning directives are in place. In addition, if the client is not well and is seeking Medicaid benefits, Elder Law attorneys are often employed to assist in the application process, as the application process can be very cumbersome.

When a client is in good health and planning for future long-term care needs, we typically charge a flat fee for our services. When, however, the planning is complicated and/or involves submitting a Medicaid application, we charge an hourly rate for our services.

For more information on Elder Law, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 888-5381 today.