What if mom and/or dad need nursing care in the future?

Jim:Medical advances over the last 20-30 years have helped to extend the lives of many Americans, but it has also led to the growth of the nursing care industry which helps to care for our aging population. This industry, just like the health insurance industry, has experienced significant increases in costs, so what can families do to help prepare for the potential need for care from a legal perspective?

Michelle:Meeting with an elder care attorney if health and care challenges are anticipated is a great way to plan.

Jim:One of the most often discussed topics among families is how to shelter assets from the cost of nursing care. Can you explain some of the basic rules regarding in Pennsylvania regarding what assets can be used (or assessed) to pay for nursing home care?

Michelle:The community spouse is always protected as are disabled children and minors. The home is protected for them however there are other ways to safeguard it from having to be sold in the future to pay back Medicaid benefits and an elder law attorney should be consulted. There are also other assets that are exempted from having to be exhausted before Medicaid benefits can be accessed, such as the Community Spouse’s IRA and a car and a Prepaid Irrevocable Burial Fund, and some others depending upon the situation. Planning can be done to protect children with special needs since otherwise a nursing home resident or resident in the community who needs to pay for in home health care generally must pay privately, with certain exceptions in the community, until an individual’s assets are spent down to a certain amount and they qualify for benefits.

Jim:If families decide they want to begin a gifting program as a way to reduce their assets, can you briefly describe the implications for Medicaid qualification for nursing care?

Michelle:Medicaid currently has a 5 year look back period. However the level of care one needs now and might need in the future, type, location, and amenities of the facility they wish to be in, needs of their spouse all influence whether a gifting plan should even be embarked upon at all.

Jim:What types of documents do attorneys prepare when helping clients with these issues?

Michelle:Our standard POAS of attorney must always be prepared and when a nursing home stay is contemplated, special, individualized care must be given to the drafting since maybe we do or do not want to allow certain types of gifting, or none at all. Trusts can be considered if appropriate under the circumstances. Even if you have a Will, once long term care is in the picture, we sometimes change the Will as part of the planning process.

Jim:Do you have any suggestions for books, articles or websites that families can go to get familiar with the things we discussed today?

Michelle:The Montgomery Elder Law Handbook (Montgomerybar.org) and the Guide to Legal Issues for PA Citizens (pabar.org) both of which I co-author and co-edit, are a great place to start. They are free and available on line and written for lay people. There are various county Elder Law Handbooks that the Montgomery County one started as a prototype. They are all free and also may be available in print at State Representative’s offices, bar associations, libraries, County Area Agencies on Agency, etc.

About Michelle C. Berk

Michelle has been practicing law for 37 years. Michelle is a Member of the National Academy of Elder Law Attorneys and Co-Chair of the Montgomery Bar Association Elder Law Committee. She is the Co-Author and Co-Editor of the Montgomery Elder Law Handbook and Guide to Legal Issues for Pennsylvania Senior Citizens. She has extensive experience in assisting with all aspects of elder care law, special needs and disability law, estate planning and the administration of estates. Her offices are located in the Philadelphia, PA suburbs and Center City, and her telephone number is 215-793-4800. She does make house calls to facilities and homes!

Michelle's office is located in Fort Washington, PA and her phone number is 215-793-4800.

You can also reach her by email at info@berkelderlaw.com. Her website with lots of helpful resources and publications is www.berkelderlaw.com