The Importance of Quality Long-Term Care Planning

By: Jerold E. Rothkoff

A few months ago, I met with Arnold, the husband of Elizabeth, a local nursing home resident.  Elizabeth, age 72, has been in the nursing home since June 2013.  Unfortunately, due to the effects of multiple strokes and dementia, she is in need of permanent nursing home placement.

Prior to coming to our office, Arnold, age 76, was referred to a non- attorney “Medicaid Advisor” to apparently assist him in filing a Medicaid application to qualify Elizabeth for Medicaid nursing home coverage. The “Medicaid Advisor” was retained only to assist with the Medicaid application.

At the time Elizabeth entered the nursing home in June 2013, Arnold and Elizabeth jointly owned a home valued at about $100,000 in which their daughter also resided.

Additionally, total spousal non-real estate assets were about $80,000. Importantly, neither Arnold nor Elizabeth had previously executed financial or health care powers of attorney.

Key Question: What are Your Concerns?

When I first sat down with Arnold, I asked him what were his concerns regarding his wife’s care and the impact of his wife’s care on himself. He informed me he was concerned about maximizing his wife’s therapy. He went on to advise me that due to his heart disease, which he was recently hospitalized for, he was concerned that he would predecease Elizabeth.  Therefore, one of his primary concerns was to protect the marital home to insure that his daughter would be able to continue to reside in the home if he predeceased Elizabeth. He did not say that his goal was to qualify his wife for Medicaid.

Unfortunately, the “Medicaid Advisor” either never asked Arnold what his goals were and/or was not capable of assisting Arnold in assuring that his goals and concerns were adequately addressed.  What should have been done was as follows:

What Should Have Been Done

  • Review current health insurance and advocate for maximum Medicare Part A skilled coverage to maximize therapy;
  • Provide education as to how to advocate for the best care possible in a nursing home;
  • Determine potential Medicaid eligibility date for Elizabeth by devising a plan for Arnold to both maximize the remaining assets and income. Elizabeth’s Medicaid eligibility date should have been at least one month earlier than expected, thus costing Arnold at least $9,000.00 in      additional private pay funds;
  • Draft and execute durable financial and health care powers of attorney for Arnold;
  • Update Arnold’s Will to minimize assets Elizabeth may inherit, including the marital home, should Arnold predecease her; and
  • Transfer the marital home from husband and wife to Arnold only. Since Elizabeth is incapacitated, she cannot execute powers of attorney.
  • Therefore, an application for guardianship will be required to be filed in Camden County for Elizabeth to be declared incapacitated and Arnold appointed as her legal guardian.  Through the guardianship, Arnold can request the Court authorize him to transfer the marital home to himself individually to insure that his daughter continues to have a home to live in.

Our office is in the process of assisting Arnold with the above issues.  The Medicaid Advisor did not advise the client regarding any of these issues, other than simply filing a Medicaid application for eligibility at least one month later than necessary had the client obtained the proper advice.

Long-term care planning is much more than just eligibility for Medicaid.  The goal should always be addressing the client’s concerns and goals.  In this case, the client’s concerns and goals were not adequately addressed by someone Arnold relied upon to secure his, his wife and daughter’s future.

About Jerry

Jerold E. Rothkoff, a practicing New Jersey and Pennsylvania attorney, is the Principal of the Rothkoff Law Group, an elder care law firm. Jerry dedicates his practice to serving clients in the areas of life care planning, long-term care planning, Medicaid & VA benefits, and advocacy for the elderly and disabled. He is past President of the NJ Chapter of the National Academy of Elder Law Attorneys, former chair of the elder law section of the NJ State Bar Association, and past President of the Life Care Planning Law Firm Association. Jerry continues to be an outspoken advocate for the rights of the elderly and disabled. He writes for and gives presentations regularly to attorneys and other professionals about legal issues related to seniors and those with disabilities. Jerry’s community activities include the Twilight Wish Foundation, the Delaware Valley Stroke Council, the Alzheimer’s Association, as well as numerous other advocacy groups. When not in the office, Jerry spends time with his wife, Erica, and their five children, eighteen-year old identical twin girls, Liza and Julia, fifteen-year old fraternal twin boys, Evan and Gregory, and six-year old Aitan.

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