We All Live in a Medical Neighborhood (Part 2)

In last week’s Elder Law FAX, we introduced Frank, a frail, 87 year-old man who has been diagnosed with Alzheimer’s disease. Frank lives by himself at home and is functionally dependent upon his overwhelmed son, Paul, to bring him groceries, take him to the doctor, pay his bills, and get his medicine.

How would a traditional elder law practice view of Frank’s situation differ from an elder-centered law practice approach? And, how does the elder-centered practice approach meet the aims and goals of the Medical Neighborhood?

Under the traditional elder law view, Frank currently has or is expected to have a care financing and asset preservation problem. Typically, the elder law practitioner will be retained to put a plan in place to accelerate Frank’s financial eligibility for Medicaid benefits.

For example, the attorney (in another state) of a client of the Elder Law Practice explained in the written plan developed for the client that “the purpose of Elder Care Plans is to protect the assets of persons who have entered into or are about to enter into a skilled nursing facility … The primary way to protect assets is to seek eligibility for Medicaid.”

If Frank doesn’t need immediate nursing home care, Frank will get necessary legal documents in place and counsel on repositioning assets to make them unavailable or inaccessible to the State Medicaid program. If he is a veteran, the elder law practitioner will determine whether Frank is entitled to monthly payments from the U.S. Department of Veterans Affairs (the “VA”) to pay for his care. A plan will be developed that may require Frank to restructure his assets to qualify for a VA benefit.

This may be done by making Frank’s assets legally unavailable to him. If those assets are not available to him, the State Medicaid program and the VA can’t consider them available. The asset repositioning may result in a five-year Medicaid lookback period. Usually, the elder law practitioner will counsel Frank and Paul on the advantages and disadvantages of such restructuring.

How will Frank’s needs for personal care be addressed? Or his values, or safety, or the risk that Paul will suffer caregiver burnout? The traditional elder law practitioner will make referrals to personal care agencies or geriatric care managers, but typically does not align the practitioner’s asset protection plan with the client’s personal care needs.

An elder-centered law practice aims for whole-person care, assisting Frank and his son Paul with attaining their goals of addressing issues that impact health or that enhance or create barriers to care. What level of care does Frank need and what kind of care does Frank want? A plan will be developed and implemented to help Frank find, get and pay for the care that most closely aligns with his values and his needs today. Frank will get legal documents and asset restructuring advice, but care financing—albeit critical—is only one aspect of the representation.

The elder-centered law practice will employ a team of health professionals who will coordinate care and advocate for Frank and for Paul. The practice will have a working relationship with community resources including residential and in-home care providers. The practice will offer Frank options. It is the aim of the elder-centered law practice to support older clients and their families in the day-to-day self-management of their chronic illnesses.

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