Elder Law Q & As

Long-Term Care Planning

If you or someone you love is at risk of spending down their life savings to pay for the ever-growing cost of long-term care, then we invite you to call today to explore the opportunities our long-term care and asset protection planning can provide.  We help families preserve their life’s work without sacrificing quality of care.

What is Long-Term Care?

Long-term care is a variety of services and supports to meet health or personal care needs over an extended period of time. Most long-term care is non-skilled personal care assistance, such as help performing everyday Activities of Daily Living (ADLs), which are:

  • Bathing;
  • Dressing;
  • Using the toilet;
  • Transferring (to or from bed or chair);
  • Caring for incontinence; and
  • Eating

The goal of long-term care services is to help you maximize your independence and functioning at a time when you are unable to be fully independent.

What Are My Risks of Needing Long-Term Care?

About 70 percent of individuals over age 65 will require at least some type of long-term care services during their lifetime. Over 40 percent will need care in a nursing home for some period of time.

Long-term care is needed when a chronic illness or disability requires assistance with Activities of Daily Living.  Your illness or disability could include a problem with memory loss, confusion, or disorientation.  This is called cognitive impairment and can result from conditions such as Alzheimer’s disease.

If you need long-term care, you may need one or more of the following:

  • Care or assistance with activities of daily living in your home from an unpaid caregiver who can be a family member or friend;
  • Services at your home from a nurse, home health provider, therapist, or homemaker;
  • Care in any of a variety of long-term facilities, including assisted living or nursing home.

How Do I Pay for Long-term Care?

The risk of needing long-term care and its related expense is too great to ignore.  With limited exceptions, Medicare and private health insurance will not pay for long-term care.  We can assist you in identifying and obtaining potential long-term care benefits, including Medicaid and VA Aid and Attendance.  We encourage you to call us today for a consultation.

Senior Housing Options

Finding housing for a spouse or an aging parent can be a daunting task. It is easy to feel confused and overwhelmed by all the different types of housing options available.

Before beginning your search, it is important to determine your spouse’s or parent’s needs and whether services such as meals, housekeeping, personal services, transportation, or medical care are necessary. Next, you need to determine how much your spouse or parent can afford each month and for how long. We can help you identify and select the most suitable senior housing option for your parent. Importantly, until you understand how long-term care and public benefits interact, it is unlikely that you will make a cost-effective long-term housing decision.

Below is a brief synopsis of some of the more common types of senior housing options available:

Independent Living Communities

Independent Living Communities, often referred to as Retirement Communities, Congregate Living or Senior Apartments, cater to seniors who are very independent and who wish to participate in recreational, social and wellness activities with other seniors. Residents do not need a lot of help with activities for daily living (such as helping with getting dressed, bathing, transferring in and out of bed, and toileting). Residents often live in separate apartments. These communities are designed for active seniors who desire the security and convenience of community living but want to maintain their independence. Medical care is not provided, and if needed, residents will have to look outside the community.

Some Independent Living Communities have senior age-requirements (usually age 55 and older). Residents typically pay privately for independent living, the cost of which is generally dependent upon the local market. However, some senior apartments are subsidized and accept Section 8 vouchers. Medicare and Medicaid do not cover payment because health care is not provided.

Assisted Living Facilities

Assisted Living Facilities are designed for seniors who cannot live on their own safely but do not require the high level of care that a nursing home provides. These facilities aim to provide as much independence and freedom to the resident as possible in a private setting. Assisted Living Facilities are a middle ground between independent living and nursing homes. Most facilities offer 24-hour supervision and an array of support services. Licensed nursing services are often provided. Assistance with medications, activities of daily living and housekeeping are routinely provided. Meals are provided in a main dining room. Social activities, laundry, transportation and other amenities are also often included.

Although they offer limited nursing care, Assisted Living Facilities are not considered medical facilities. These facilities do not accept Medicare as payment. They will, however, accept long-term care insurance. For veterans and their surviving spouse, VA Aid and Attendance benefits can offer significant financial assistance. Some Assisted Living Facilities accept Community Based Alternative (CBA) payment, which is funded through Medicaid. While this option is attractive to many, due to chronic underfunding in Texas, it is common for applicants to be wait-listed for 2 years or longer.

Nursing Homes

Nursing homes provide around-the-clock skilled nursing care for seniors who require a high level of medical care and assistance. Many nursing homes provide short-term rehabilitative stays for those recovering from an injury, illness or surgery. Long-term care residents generally have greater care needs and complex medical conditions that required 24 hour skilled nursing services. Nursing home residents receive in-house medical care, rehabilitation, physical, occupational, speech and other types of therapies. Personal care services are also provided along with social services, religious services and recreational activities. Some facilities cater to those with Alzheimer’s Disease, cancer, dementia or other special health situations.

Payment options for nursing home care include private pay, Medicare, (limited number of days), Medicaid and long term care insurance policies.

Home Care

Home care allows seniors to remain in their own homes while receiving the assistance they need to help them remain independent. There is a wide range of home care services depending on the needs of the senior. Professionals may visit the home on an agreed upon schedule or live in the home to assure that the senior is safe and his or her needs are met. Home care typically involves providing assistance with activities of daily living, paying bills, making appointments and simply being there to provide companionship and emotional support.

Payment options for home care include private pay, Medicare (limited number of days), Medicaid CBA, long-term care insurance, and VA Aid and Attendance or Housebound benefits.


Q1 How can an elder lawyer help my family?

A:  As people age, they face many issues involving housing, care, tax, and finances. Making the wrong choices can cost thousands of dollars and forfeit attractive care and housing options. By educating clients on key considerations and reviewing competing proposals, elder lawyers help families make the right decisions and avoid costly errors. They evaluate contracts and insurance proposals and draw legal documents ranging from special needs disability trusts to care agreements, and estate plans. To facilitate Medicaid and tax planning and avoid expensive and intrusive court ordered guardianships, elder lawyers frequently prepare wills, trusts, powers of attorney, health care proxies, and living wills. They also review applications and form agreements issued by continuing care retirement communities, nursing homes, assisted living providers, and other facilities and negotiate changes to inappropriate and unfair terms.

Q2  What steps should I take when a loved one may need long term care?

A:  Consult an elder law attorney as soon as a loved one becomes unduly frail or forgetful or is diagnosed with a degenerative condition like Parkinson’s Disease, Alzheimer’s Disease, Dementia, Multiple Sclerosis, or ALS (i.e. Lou Gehrig’s Disease). Because Medicare doesn’t pay for long term care, our firm helps families meld Medicaid and other available resources to fund nursing home care, assisted living, or care at home without going broke. Although early planning preserves options and maximizes savings,  substantial sums often can be saved for people who have already entered a nursing home.  Healthy seniors can use life estate deeds and other tools to shelter assets should long term care ever be needed. Because Medicaid rules are extremely complex, making gifts or applying for Medicaid before consulting an elder lawyer can substantially reduce potential savings and trigger expensive penalties.

Q3  How much may I give away to children (or others) when seeking Medicaid?

A:  Most gifts temporarily disqualify the donor and spouse for Medicaid, but substantial gifts may be possible with careful Medicaid planning. Some gifts even may be made shortly before an individual qualifies for Medicaid. However, unless gifts comply with complex and arcane Medicaid and tax rules, they can have unintended consequences. For instance, a donor may qualify for Medicaid 3 years after giving away $250,000 or more, but if the gifts are poorly planned, the donor could be denied Medicaid for many more years.

Q4  Why does everyone need a power of attorney that authorizes long term care planning?

A:  To protect savings against long term care costs, you probably must transfer assets, perhaps through gifts. However, if your mental capacity declines, gifts and other transfers may require guardianship and court approval unless you execute before mental acuity dissipates a power of attorney containing custom drafted provisions that facilitate Medicaid planning. Because anyone can have a bad accident, even young people should give power of attorney.

Q5  What’s wrong with a generic power of attorney form?

A:  Unfortunately “form” powers of attorney available from stationery stores, computer programs, and general practice lawyers rarely work in Medicaid and other long term care planning. Even though they may contain broad general language, these forms usually don’t authorize gifts to qualify for Medicaid. However, elder law attorneys can draw powers of attorney that are effective in long term care planning but aren’t very costly.

Q6  Why are new wills, deeds, and beneficiary designations essential in Medicaid planning?

A:  Because inheritances and other receipts may disqualify an individual for Medicaid and cause recapture of prior government aid, wills, deeds, accounts, and IRA and insurance beneficiary designations generally should be changed when a loved one may need long term care.

Q7  How can I protect the value of my home in case I someday need long term care?

A:  Simply deeding your home to children may jeopardize tax breaks and risk losing your home should a child become disabled, divorce, die, or incur financial difficulties. In contrast, a life estate deed can protect your right to live in your home as well as tax benefits while sheltering the house against long term care costs. Because any legal document affects valuable rights, consult an elder law attorney before signing a life estate deed.

Q8  How can a Special Needs Trust protect government aid for a disabled person?

A:  Anyone who can’t support himself due to disabilities may qualify for government aid like Medicaid, SSI, housing subsidies, and free group homes, but most gifts and inheritances (whether outright or in an ordinary trust) will jeopardize eligibility. By establishing a Special Needs Trust now, you can make gifts during your lifetime or by Will to provide for a disabled person without disqualifying him/her for government benefits. You need a Special Needs Trust whenever you wish to provide for a descendant, sibling, spouse, or other loved one who is or may be too disabled to work. Without a Special Needs Trust, your gift substitutes for government funds instead of supplementing government aid.

We are dedicated to helping you select the right senior housing option. We encourage you to contact us today for a consultation. Referrals are available upon request.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
Hubbard and Rotthier, Attorneys at Law
Contact Hubbard and Rotthier, Attorneys at Law for a confidential consultation to assist you with your legal needs. Licensed to practice in all courts in the State of Texas.

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