Caregiving children and family members are faced with many important concerns and challenges each day: What level of care does dad need?  Will mom be safe at home? How much does long term care cost, and how are we going to pay for it?

There are countless decisions that must be made with respect to caring for elderly family members.  The maze of options and resources available to our aging population may seem overwhelming and the apparent cost of long term care can be a hindrance for individuals on fixed incomes.  Consulting with an Elder Law attorney is a crucial first step in formulating a comprehensive long-term care plan so that your family members can receive the assistance they need and protect their assets for the future.

An Elder Law attorney will analyze your parents’ long-term care needs and financial condition to formulate an individualized plan that meets their goals, with a focus on preserving their life’s savings and the potential need for Medicaid benefits.  Elder law attorneys will review your parents’ current estate plans and advance directives to make sure all of their legal documents are up-to-date and their unique goals are being achieved.

Additionally, Elder Law attorneys have relationships with other professionals who work with seniors, such as geriatric care managers and social workers, as well as administrators at senior centers, assisted living facilities and nursing homes, all of whom we can call upon as resources to best serve the needs of your loved ones.  If you are concerned about your parent’s care and financial longevity, book a consultation with an Elder Law attorney at Lamson & Cutner today.

We are extremely pleased to report that on March 27, 2012, Governor Cuomo and the State Legislature agreed upon the New York State Health Budget Bill for 2012-2013, which repeals the recent expanded definition of a Medicaid recipient’s “estate” and rejects the elimination of spousal refusal.  This is great news for elderly and disabled citizens of New York, and a true victory for those relying on Medicaid benefits for long-term care.

As many of you know, Medicaid has the right to seek reimbursement of its costs from the estate of a Medicaid recipient.  The Governor’s proposed Budget Bill and subsequent emergency regulations expanded the definition of the term estate to allow Medicaid to recover from assets outside of a decedent’s probate estate.  Had it not been repealed, this expanded definition would have included life estates, jointly held real or personal property, interests in trusts and retirement accounts such as IRA’s.  The proposed definition was in conflict with long established legal principles governing trusts, estates and real property.  Under the revised and final Bill, the definition of estate will be reinstated to include only assets in a decedent’s probate estate.

Additionally, the proposed Budget Bill included a provision that “spousal refusal” would be eliminated for married Medicaid recipients.  Effectively, this change would have forced community spouses to impoverish themselves by paying for the long-term care of their ill spouses.  Spousal refusal allows the spouse of a Medicaid applicant to sign a written statement refusing to make his or her own assets count as a resource of the spouse applying for Medicaid.  If a spousal refusal is signed, Medicaid must provide benefits to an applicant who is eligible, but retains the right to pursue a contribution from the community spouse later on.  Spousal refusal is an extremely important tool for married seniors, as it allows for healthy spouses to maintain themselves in their homes and communities, and plan for their own long-term care needs.  Fortunately, married couples continue to have the right to exercise spousal refusal.

If you would like to learn more about how the new Budget Bill will affect you and your family, please call us today.

Lamson & Cutner’s latest Special Report is currently at the printer, and will be available soon.   The motivation for writing this report, according to David Cutner, was that “we felt there was a huge gap in the available literature about Elder Law techniques and strategies.   There was nothing that could give someone a quick, but comprehensive, view of how to go about solving their legal and financial issues concerning their health care, particularly if they’re faced with the ruinous costs of long-term care.”

The Elder Law Crash Course answers the call by giving readers a 15-minute education in the master strategies to qualify for Medicaid and protect your money and property at the same time.  The Crash Course isn’t legal advice, but it will certainly alert you to your rights and options, and help you make the most of a consultation with an Elder Law attorney.

If you would like to have a FREE advance copy of The Elder Law Crash Course, please contact our office by sending an email with your name and address to help@lamson-cutner.com, or calling us at 1 (855) 898-1919.

Also, you can get up-to-date information on current Elder Law issues by signing up for a FREE subscription to THE ELDER LAW EXCHANGE newsletter at www.theelderlawexchange.com.

On March 9, 2012, The Wall Street Journal published a front-page story about the complexity of the Medicare and Medicaid laws, and how even judges are having difficulty in understanding them.  The U.S. Supreme Court once characterized the Medicaid statute as “an aggravated assault on the English language.”

James Madison warned long ago in the Federalist Papers about laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood.”  His caution remains a timely one.

Judges from all over the country have written about the practically impossible complexity of the Medicare and Medicaid laws, often in a caustic or humorous fashion.  These laws were initially enacted in 1965, and, after several amendments since then, now run hundreds of pages.

If you are having as much difficulty as these judges in understanding your rights under Medicare or Medicaid, you may want to call an Elder Law attorney at Lamson & Cutner.  We work with these laws every day, and, while there are times when certain provisions seem beyond anyone’s understanding, in most situations we’ll be able to help you.

Recent changes to New York State Medicaid laws have expanded the definition of an “estate” for Medicaid estate recovery purposes.

Upon the death of a Medicaid recipient, Medicaid can recover expenses paid on behalf of the recipient from his or her estate, under certain circumstances.  Before the new regulations were put into place, Medicaid limited its claims to the decedent’s probate estate, which generally included only those assets that passed through a will or intestacy.  Now, with the expansion of the definition of estate, Medicaid is also taking into consideration assets outside of the probate estate, including jointly held real or personal property, retained life estates and interests in trusts.  Therefore, assets that were previously protected from a Medicaid claim may now be at risk.

Despite the changes in the law, you can still effectively plan for your future long-term care needs and preserve some, if not all, of your assets.  Now, more than ever, it’s important to review your current plan with an Elder Law attorney to be sure that you are in the best possible position to preserve your life’s savings and protect your property.  Call the Elder Law attorneys at Lamson & Cutner at (212) 447-8690, to schedule a consultation.

We’ve been asked several times whether or not a Medicaid applicant can have a primary (and in many instances secondary) health insurance plan, and, if so, if he or she must give up such plans once accepted to the Medicaid program.  People often believe that their medical insurance coverage precludes them from becoming Medicaid eligible, and are worried that they may lose their current benefits by becoming a Medicaid recipient.

Having medical insurance, either through Medicare or any other private plan (such as GHI or Blue Cross Blue Shield), does not prevent an individual from becoming Medicaid eligible.  Additionally, if an individual is accepted to the Medicaid program, he or she will not be forced to give up any existing health insurance plans.

Since medical insurance does not pay for the catastrophic cost of long term care, it is often necessary for an individual to access Medicaid for assistance with paying for home care or nursing home care, even if he or she has ample health insurance.

When it comes to medical coverage, Medicaid is the “payor of last resort,” so a patient’s primary and secondary insurance policies will be accessed before Medicaid contributes.  In fact, Medicaid advises that a Medicaid recipient maintain all insurance policies he or she currently has, and even offers incentives such as deducting the cost of the premiums from the recipient’s monthly income calculation or paying the premiums under certain situations.  Also, it is advisable that current health insurance be maintained so that the Medicaid recipient can continue to see his or her doctors and specialists, even if they don’t accept Medicaid.

The fact that you have Medicare or a supplemental health insurance plan should not keep you from accessing Medicaid benefits if you need assistance with paying for long-term care.  Elder law attorneys can advise you on how to get the most benefits available to you, without giving up any insurance you already have.

This fall, Partners in Care, one of the premier providers of home care and geriatric care management in New York City, has been hosting a series of free online seminars focused on helping you make difficult elder care decisions.

The next online seminar, “The Financial Realities of Home Care” takes place on November 16 at 1 PM EST. It will be moderated by Mary Alice Williams, an Emmy Award-winning television journalist and health educator. The online seminar includes an informative presentation by three experts in the home care field, followed by an interactive question and answer session.

The three panelists for the online seminar will be Marki Flannery, the President of Partners in Care; Paula Brancato, a representative of Northwestern Mutual and an expert in long-term care insurance; and Elder Law attorney David Cutner, a founding partner of Lamson & Cutner, P.C.

Individuals interested in learning about the costs of long-term care, and how to plan and pay for it, should plan on joining the seminar, which can be viewed conveniently and privately on your own computer.  You’ll have an opportunity to send your own questions to members of the panel, and the seminar is free.

You can register for the seminar at www.caregiverseminar.org

Lamson & Cutner has published a New Updated Second Edition of its popular and highly regarded “25 Strategies to Prevent Financial Ruin from Long-Term Health Care Costs.”  A copy of the informative Special Report is available free of charge.  Click here to access a free download of the report, or contact the law firm by email or telephone to obtain a printed hard copy.  If you represent an agency or organization that provides assistance or services to the elderly or disabled, please call Lamson & Cutner for delivery of multiple copies that you can provide to your population and their families.

While the “25 Strategies” Special Report deals with complex legal issues and strategies, you will find that it is clearly written and easy to understand.  David Cutner, the principal author of the report, explains:  “I believe it is important to de-mystify the legal process, and state in plain language what we do and how we do it.  It makes no sense for attorneys to speak to clients in the same way they speak to other attorneys or judges. Clients are entitled to understand what is involved when they seek our advice, so they can make an informed decision about what is best for them.”

The NYS Department of Health has finally issued long-awaited regulations implementing changes in New York law regarding recovery and reimbursement from estates of Medicaid recipients. These changes have been very controversial because the law’s new definition of what constitutes the “estate” is in conflict with other, long-established, laws affecting estates, trusts, and real estate. In essence, under the new laws and regulations, Medicaid will seek to recover from non-probate assets, i.e., assets that have never been considered to be part of a decedent’s estate, or even to exist at all after death.  A prime example is that Medicaid will seek to recover the value of life interests in real estate (which, under real estate law, are extinguished upon death). Lamson & Cutner is currently analyzing the new regulations, and will be posting additional advisories once we have a clear view of their implications.

New York’s recently-enacted gay marriage law is a great emotional and symbolic victory for New Yorkers, and for gay couples everywhere. It also has significant practical benefits in many areas that touch the legal rights of married persons. For those of us concerned with the health care, and particularly long-term care, of seniors, New York’s law will have a significant impact. For example, gay couples who marry will have spousal rights under the Medicaid laws to make exempt transfers of money and property to their spouses, and to claim the benefits of the Community Spouse Resource Allowance and the Minimum Monthly Maintenance Needs Allowance. To find out more, contact your Elder Law attorney.