How do I pay for long-term care when I don’t have much money? How do I get Mom to move when she’s not safe alone at home? What do I do when my Dad’s nursing home staff abuses him?
These are all questions regularly faced by elder law attorneys.
This growing but small segment of the Texas legal profession, counting fewer than a dozen attorneys in Tarrant County, focuses on the needs of older and disabled adults.
Elder law attorneys specialize in the sometimes complex issues of guardianship, estate planning, probate and public benefits, specifically veterans benefits and Medicaid, said Monica Benson, an elder law attorney at Katten and Benson in Fort Worth and board member of the Texas National Academy of Elder Law Attorneys (NAELA).
“A lot of elder law issues tend to bleed into other things,” she said. “You may come in for estate planning, but your spouse has a chronic illness, so Medicaid planning comes into play. Then if they pass away, we help in the probate area.”
One area that most do not plan for is long-term care, said Chrys Jones, a Fort Worth elder law attorney who is also on the Texas NAELA board.
“About 50 percent of my clients are people who are trying to pay for long-term nursing care,” she said. “In elder law, the knowledge is focused exclusively on how an elderly person will need care.”
With the majority of long-term care paid for by Medicaid, knowing how that program integrates with estate planning is crucial, the lawyers said.
“You don’t want to do something in estate planning without considering Medicaid planning,” Jones said. “You don’t want a family member getting kicked off of Medicaid because they inherit something.”
Filling out the Medicaid application is also not an easy task, Jones said. In six years as an elder law attorney, she said most of her client’s applications are denied at first, although she has always been successful on appeal.
“Most of the time it’s a mistake at Health and Human Services (HHS),” she said. “It’s better to work with an attorney on this. People who apply on their own and are denied never question it or know they can question it.”
Because of the complex nature of Medicaid filing and planning, the Texas NAELA is on a public campaign to make Texans aware that only attorneys can be paid for helping fill out Medicaid applications. “Medicaid planners” in the state who are not attorneys may be giving advice that is not legal for them to give, Jones said.
“Using one of these services can make you vulnerable to having an issue later down the road,” she said.
Benson said she often has clients tell her they are concerned their parent will run out of money before costly end-of-life care comes up and they are fearful that Medicaid patients received substandard care.
“But they should receive the exact same care as a private pay or short-term disability in the nursing home,” she said. “I find out their geographic area and give them a list of nursing homes that accept Medicaid patients. Nine times out of ten they are pleasantly surprised. My own grandmother lived in a nursing home and we were very pleased with Medicaid.”
That said, Benson recommends visiting several facilities, talking to residents and staff and observing conditions before making a decision.
Both attorneys recommend planning for long-term care, rather than waiting until it becomes necessary.
“The longer you wait, the more afraid of it you become,” Benson said. “We make sure you’re not intimidated by the process.”
There is also a lot of bad information floating around about Medicaid qualifications, Jones said.
“There is a lot of misinformation of what it takes to be eligible for Medicaid,” she said. “I’ve heard financial planners, nurses, healthcare professionals give bad information.”
Clients routinely come into her office thinking they will not qualify, but there are a number of assets, including a house and vehicles, that are exempt when qualifying for Medicaid, she said. This allows the community spouse — the one remaining at home — to continue to support themselves.
“The state doesn’t want to impoverish the community spouse,” she said. “They want them to be able to continue on. Otherwise, there are two people on benefits.”
Jones said guardianships are a decreasing part of her practice because Tarrant County now allows individuals to file a notice and the county processes the request.
“But if you want to be more in control, you can represent yourself or get an attorney,” she said.
Some elder law attorneys get an extra certification called a Certified Elder Law Attorney, or CELA, a national certification program that requires five years of practice in elder law and a written exam. Benson said there are only around 25 CELA attorneys of the 180 elder law attorneys in the state, including herself.
Getting help with Medicaid
▪ For a list of Texas elder law attorneys by ZIP code, go to the Texas National Academy of Elder Law Attorneys at www.texasnaela.com.
▪ Check out the updated website of the Texas Department of Health and Human Services at www.YourTexasBenefits.com. The site provides information on benefits like Medicaid and allows you to apply and renew benefits from the site, as well as check status.
▪ Tarrant County Area Agency on Aging benefits counselors can be reached at 817-258-8125.