Frequently Asked Questions - Elder Law

What is Elder Law?

Elder Law is the specific practice of counseling senior citizens, their legal representatives and their families in connection with estate planning, public benefits (such as Medicaid), planning for incapacity, tax planning (estate, gift and income) and other issues which uniquely affect older persons.

What is the difference between Medicare and Medicaid?

Medicare is a federal health insurance program for which most senior citizens age 65 and over are eligible. If you are eligible for Medicare (e.g., you are 65 and entitled to social security benefits for at least 2 years), there is no premium for certain benefits, such as inpatient hospital care. For other benefits, such as physician’s services and prescription drug coverage, you must pay insurance premiums. Medicaid is a “needs based” joint federal/state health insurance program which provides coverage for medical services not covered by Medicare (such as long term nursing home care) and for which the individual patient is unable to pay.

If I enter a nursing home and have no nursing home insurance coverage, will I lose all my assets?

Not necessarily. The average cost of a nursing home in the New York metropolitan region is approximately $9,000 per month, and most insurance plans, including Medicare, do not cover such costs. However, there is a wide range of planning which can be done to insure that at least some of your assets, including your family home, are not used to pay for your care before you qualify for Medicaid benefits that will pay the cost of the nursing home. The steps which can be taken and how much of your assets can be sheltered depend, in large part, on putting a plan in place far in advance of when the need for nursing home care arises.

Will a revocable trust protect my assets from the cost of a nursing home or estate taxes?

Generally, no. Planning to shelter assets from nursing home expenses and estate taxes involves a wide range of options, some of which incorporate the use of revocable trusts. However, revocable trusts, which can be expensive to draft, are not appropriate for everyone. Our firm can assist and advise you in implementing a cost effective, practical plan to meet your needs.

My parents are fine now, but I have noticed that they are beginning to become forgetful and I think they may need help with their affairs in the near future - what should I do?

It is important that both younger and older persons prepare for unexpected incapacity, whether by accident or through the natural course of aging. Health care and business decisions may need to be made by a spouse or other family member. Our firm can help you consider your options in planning for incapacity, including the preparation of “advance directives,” which include powers of attorney, health care proxies, living wills and in some cases, revocable trusts.

My elderly father has been having difficulty managing his affairs since my mother’s death and I am not sure he is able to sign a power of attorney so that I can help him - what can I do?

If a person is unable to manage his or her personal or financial affairs but cannot give authority to another to act on his or her behalf, it may be necessary to seek the appointment of a legal guardian. Our firm can assist you in making the determination of whether a proceeding to appoint a legal guardian is necessary, and if so, to guide you through the process of that proceeding.

Years ago, my mother appointed me to act for her in a power of attorney. My mother is now unable to manage her affairs and her assets are substantial. Should I get advice on what to do?

When you agree to act as an agent for another through a power of attorney, you are a fiduciary, meaning that you have special duties in carrying out your responsibilities for that person, including the way you manage that person’s assets. You must be very careful as to how you handle such person’s affairs, and you may have to account for the actions you took when your duties are finished. Whenever you agree to act as a fiduciary, we strongly suggest that you seek professional legal, tax and investment advice. Our firm can provide you with legal and tax advice. Although we do not provide investment advice, we can work with your chosen investment advisor.

PLEASE NOTE THAT THE ABOVE QUESTIONS AND ANSWERS ARE FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE ADVICE. EVERY SITUATION IS UNIQUE AND IF YOU ARE CONFRONTED WITH AN ELDER LAW ISSUE, WE ENCOURAGE YOU TO MEET WITH US SO THAT WE CAN GIVE YOU ADVICE SPECIFICALLY TAILORED TO YOUR NEEDS.