Have You Received the Best Legal Advice?
By Craig Watson, Texoma LIVING WELL Magazine
Harry is a 78-year-old man whose beloved wife has had dementia for years. The couple’s children, while supportive, do not live near enough to help. Sally’s condition has worsened to the point that Harry has no choice except to admit Sally to a memory care center. Harry is very sad and feels like he has failed his wife because he cannot care for her at home any longer. They have about $90,000 in savings and a $90,000 home. His depression was made worse by the realization that he can’t afford her care. They still make monthly payments on loans for their home, car and pre-need funeral plans. The nursing home personnel suggested that he get some free counseling available at a council of governments office regarding qualifying Sally for Medicaid assistance. His outlook sunk deeper when the case worker told him his only choice was to pay for Sally’s care until half the couple’s savings was gone, at which time Sally would be able to qualify for Medicaid. Further, they didn’t even tell him how to protect his house from a Medicaid Estate Recovery Program (MERP) claim if he were to unexpectedly die before Sally.
Harry’s brother suggested consulting with a local elder law attorney. After Harry provided the attorney with detailed information about the couple’s income, assets, debts and expenses, the attorney devised a plan that preserved all of the couple’s assets for Harry’s security and allowed Sally to qualify immediately for Medicaid. Harry was so relieved! Harry considered it a bonus that the attorney also suggested a special type of deed, which would allow the house to pass to the couple’s children and avoid a MERP claim. Harry was very appreciative when the elder law attorney told him that this plan would also allow both of their estates to avoid probate, thereby saving their children money.
The above story is true; the names have been changed to protect the client’s confidentiality. Today’s senior citizens are members of the Greatest Generation. They were taught that our government is “of the people, by the people and for the people.” They would trust just about any government entity because, in their mind, the government is supposed to serve them as a taxpaying citizen. However, the cost of long-term care is a big deal and protecting the financial security of today’s trusting senior citizen is not a priority for the government. The fact is that a man paying for his wife’s memory care pays a higher monthly fee than Medicaid would pay even though the level of care is exactly the same. Most senior citizens think fairness would dictate that the government would not negotiate a better deal for itself than it allows a taxpayer to get but that is not the case with respect to the price paid for care in a long-term care facility. Because a nursing home receives more money per month from a private citizen than it would for the same service rendered to a Medicaid patient, the nursing home has no incentive to refer a private citizen to an elder law attorney. In fact, the nursing home is incentivized to refer the private citizen to a counselor that will advise the citizen in such a way to keep the citizen on “private pay” for as long as possible because the nursing home will receive more monthly revenue for the same care from a private citizen than it would from Medicaid. Obviously, the government would also like to see each citizen spend all of their money on their own long-term care. However, Congress has provided a set of statutes that outline what is required to qualify for Medicaid assistance. It is the elder law attorney’s job to know those statutes inside and out in order to apply the law to each client’s particular, special set of facts. He also helps clients plan to protect their assets even though there is no current indication that they will ever need a nursing home.
Craig Watson has been practicing law for almost 23 years. Before becoming an attorney, he practiced as a CPA for four years. He has been Board Certified in Elder Law (a specialty recognized by the Texas Board of Legal Specialization) since 1997. His practice is devoted to estate planning (including wills, trusts, powers of attorney, etc.), probate and elder law (including nursing home Medicaid qualification). Craig Watson can be reached by calling 903-813-8500.