Law Tips: Traps When Consulting Older Clients P2

Understand that meeting with an attorney can be intimidating. Ask Why? before proceeding with a guardianship.  Don’t assume the family is correct about an individual lacking the legal capacity to execute documents. These are a small sample of the insights on consulting with older clients offered by our Elder Law attorney Jane Langdon Null in last week’s Law Tips. If you didn’t have the opportunity to read her Tips When Consulting With The Older Client, you will find her practical reminders below.

Along with her overall guidance on your Elder Law consultations, Jane points to critical “Traps” that you will want to prepare for when you are advising an older client. Here is a summary of those issues for your review:

1. Trap: Representing husband and wife in a second marriage.

  • Couple has kept assets separate and want to leave each estate to their respective children- explain how their assets will impact the potential Medicaid eligibility of the other spouse in the future.
  • Caregiver husband is exhausted and wants to place wife in a nursing home but wife wants to stay at home and hire home care; husband is worried about running out of money.
  • Wife is in nursing home and husband comes to you to assist with Medicaid application. Wife tells you she doesn’t want to transfer all assets to her husband. Who do you represent?

2. Traps in Medicaid Planning:  Look at the big picture and not just the numbers.

  • Make sure assets retained as part of the community spouse’s share can be transferred to the community spouse.
  • Someone must have legal authority to re-title assets with a power of attorney or a guardianship.
  • Ownership of an IRA cannot be transferred to a spouse and will have to be liquidated unless you pursue a legal separation and obtain a QDRO.

3. Trap: Your job isn’t done when you receive a Medicaid approval notice.

  • Make sure Medicaid applicant is in a Medicaid facility and a Medicaid bed. Medicaid won’t pay for their care otherwise.
  • AII assets over $1,500 must be transferred to the Community Spouse within 90 days.
  • If the applicant was approved under a penalty period, you will need to ensure the nursing home submits monthly bills to Medicaid in order for the client to meet his or her monthly spend down.
  • Track the penalty period to ensure that Medicaid kicks in to cover the nursing home per diem at the correct time and the monthly liability is calculated correctly.
  • Up date the estate plan of the community spouse to adequately provide for the institutionalized spouse without jeopardizing Medicaid eligibility.
  • Assist client with the annual redetermination, if necessary.

Advancing in age is complicated!  Providing the proper and considerate Elder Law counseling is surely becoming more important for clients and more challenging for the practicing attorney.  Thanks again to Jane Langdon Null for sharing her expertise for the Law Tips readers.  If you are in need of continuing legal education in this arena, ICLEF’s Annual Elder Law Institute offers a comprehensive agenda with quality faculty.  The 2013 Elder Law Institute is available as a Video Replay near you, or as an On Demand Seminar.

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Our Law Tips faculty participant:
Jane Langdon Null has limited her practice to the area of Elder Law for the majority of her legal career. She currently has her own law practice on the north side of Indianapolis. Her practice focuses on elder law issues, including guardianship, advance directives, Medicaid planning and application, wills and trusts, probate estate administration and nursing home residents’ rights. In addition to advising seniors on many legal issues, she also provides assistance with determining and locating the most appropriate type of care for her clients, ensuring quality care, and coordinating service providers.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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