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Elder law & housing: A explanation of the options

Elder housing is multifaceted – from fairly independent clients living in their own homes to highly dependent clients living in nursing homes. Affordability is always an issue, but increasingly so as needs increase and public benefits weigh in.

Advising on housing for the elderly is not one area of law but many and also involves not just law but other services and service providers.

The elder law attorney must understand the stages of care, sources of payment and what resources can be used to select and arrange for proper care at each level.

Aging in place

The most independent of the elderly are those who age in place –  those who stay in their own homes. A lawyer who is involved in aiding a client with planning at this level must enlist a geriatric care manager who can assess the older person’s needs and develop a plan for service delivery. Then, the elder law attorney, with knowledge of reverse mortgages, veteran benefits, home care agreements, and Medicaid can counsel as to resources available to finance the manager’s recommendations.

Assisted living

Next on the continuum are elderly clients who can lead somewhat independent lives but who need assistance – assisted living. Assisted living can encompass everything from single family dwellings remodeled into licensed facilities to large high rises with varied activities and services. Here too, a lawyer who is involved in aiding a client with planning for this stage of life must enlist a geriatric care manager. The manager can help a client select the most suitable assisted living facility for that client’s needs.

Once a suitable facility is located, the elder lawyer must support clients and their families such that the assisted living contract is comprehensible to them. The contracts are more complicated than lease agreements since they contain monthly occupancy fees, fees for different levels of services, and complicated provisions for termination.

There is also the issue of affordability. Virginia Medicaid does not pay for assisted living and there is little in the way of public benefit programs to defray assisted living costs. The auxiliary grant program provides a modest benefit but only for low income residents who have limited to no resources. This modest grant is not competitive with the average cost of assisted living care and most facilities either refuse to take auxiliary grant money or they limit grant recipients to a few beds in their facility.

For most clients in need of assisted living, the elder law attorney must ask the following questions: does the client have a long-term care insurance policy that covers assisted living? If so, what is the per diem rate of pay? How long will the policy pay? Is the client an eligible veteran or the spouse of a deceased veteran so that the aid & attendance program can be used to help fund the cost of assisted living care?

Continuing care communities

A hybrid of independent, assisted living and nursing home care is the Continuing Care Retirement Communities. CCRCs are a form of supportive housing that guarantee a resident lifetime appropriate care. A resident can enter as an independent living tenant, progress to assisted living and finalize their stay with nursing home care.

CCRCs charge a high admission fee. This functions as a health care insurance payment. The resident pays the admission fee in addition to a monthly occupancy fee in order to guarantee that the CCRC insures lifetime care.

Once the resident is living at the CCRC, that resident will be living there regardless of physical or mental condition. If one spouse enters the CCRC nursing home, the other spouse will be living in the same CCRC.

Issues for the elder law attorney to discuss include: what if the resident changes his or her mind and doesn’t like the CCRC – is a portion of the high admission fee refundable? What happens if the facility goes bankrupt?

Nursing homes

Nursing home residents have the highest levels of care and the most complex needs.

Medicare provides only limited coverage for nursing home care; so when the nursing home resident has inadequate long term care insurance and/or must look to their resources & income to pay nursing home expenses, Medicaid eligibility must be addressed. It is the elder law attorney’s job to explain, plan for and assist clients with Medicaid long-term care program.

The attorney must dispel misconceptions over the different rules that apply to a married couple when one spouse requires nursing home care versus Medicaid rules applicable to when a single individual requires residency in a nursing home. If Medicaid planning is advised, the elder law attorney must understand the transfer of asset prohibition, the penalty period, and how assets can be safely transferred while still maintaining care for the resident.

The attorney should advise the client about resident rights and help the client through the complicated admission agreement. The applicant’s family or fiduciary is often asked to either co-sign and/or sign for the applicant. The elder attorney’s advice can be of great help in protecting the applicant and the fiduciary from an overreaching nursing home who may attempt to bind the fiduciary’s personal resources to satisfy an applicant’s outstanding bill. Finally, the elder law attorney should advise the fiduciary as to ways to monitor care provided to the resident in order to protect against improper and/or negligent care.

Housing for the elderly is a challenge but it is also satisfying to advise and assist clients and their families during this challenging period of their lives.

- By Edward E. Zetlin

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