Alton Nichols and Betty Hall, Photo by David Lassman

Recently, the child of one of my clients told me about a wedding her parents had attended. The wedding was that of a giddy-in-love senior citizen couple. The groom was 82, the bride 87; both living at the same long-term care facility. The bride was heard to gush, “I wanted to marry a younger man this time.”

Love and marriage is wonderful (as is obvious from the photo of Alton Nichols and Betty Hall, pictured above) but for senior citizens it raises very different issues than it does for the young and newly married. One obvious issue is the fact that most seniors already have adult children, and many of those adult children are quite vocal in their concern about their mother or father becoming involved in a new love life. Before mom or dad get married, many children want to make sure that their inheritance is protected.  To that end, many seniors use wills or trusts which direct that assets go to “my kids and grand-kids,” or create pre-marriage-property-settlement agreements (pre-nuptial contracts) which require that the pending bride or groom give up any interest in their new spouse’s assets.

Despite these attempts to safeguard assets for the original families, there is another hidden danger to the family wealth whenever a senior chooses to wed. A trust or pre-nuptial agreement does not protect the assets of one spouse from being drained to pay for an ill spouse’s medical costs, including long-term care costs. The “Common Law of England” required long ago that husbands and wives be legally responsible to pay for each others’ necessaries, and our own government adopted that requirement. Included in those “necessaries” are food, housing, and yes: healthcare. This includes the cost of care when someone is diagnosed with Alzheimer’s, Parkinson’s or any other long-term illness.

To protect themselves from this hidden drain on a lifetime of earnings, healthy vigorous seniors who are considering getting “hitched” must consider the wisdom of purchasing long-term care insurance and perhaps engaging an elder law attorney to assist them with longevity planning. All this must take place before your marriage, so that you have some idea of what your real risks are. Elder law attorneys have many creative legal solutions that go beyond the traditional estate planner’s basic will and trust, which merely deal with the distribution of your assets at the time of your death, avoidance of probate, and minimization of estate taxes.

If you are over 65 and considering saying “I do,” please recognize that you are also promising to pay for your new spouse’s future long-term care medical expenses. “In sickness and in health” is a standard line in most wedding vows, and the state of Illinoise takes that vow and makes it law. In the Chigaco metropolitan area the monthly cost for assisted living expenses ranges from a low of $2,500/month to about $6,000/month, and the cost for skilled nursing home care ranges from $5,500 to $10,000/month, or more.

With these numbers in mind, it’s good to remember that when you say “I do” what you’re really saying is “I’ll pay.”

Many US citizens assume that Medicare is their right. They assume that the health reimbursement program provided by the United States government on behalf of persons who are over the age of 65, blind, and/or disabled has always been there, and always will be.  But this is not the case.  Medicare and its ugly twin Medicaid did not actually exist until recently; July of 1965.

The Medicare-Medicaid Act was part of a number of reforms implemented by President Lyndon Johnson and the Democratic majority. President Johnson stated:

“No longer will older Americans be denied the healing miracle of modern medicine. No longer will illness crush and destroy the savings that they have so carefully put away over a lifetime so that they might enjoy dignity in their later years. No longer will young families see their own incomes, and their own hopes, eaten away simply because they are carrying out their deep moral obligations to their parents, and to their uncles and their aunts. And no longer will this nation refuse the hand of justice to those who have given a lifetime of service and wisdom and labor to the progress of this progressive country.”

Providing for seniors marked a major shift in our societal view of who should carry the cost of providing medical care for senior citizens.

The world was different in 1965. I was 15 years old and I remember most of the aged poor of our community went to the county home for the aged and infirm. Most men died before the age of 65, and women before the age of 70. There were few long-term care facilities, because few were needed. Today we have millions of people with long-term care needs.

Medicare was built on a 1965 acute care model, designed to provide healthcare for the individual who has a probability of recovering from his or her disease. Medicare is not designed to pay for long-term care. Medicare was designed to ‘care’ about acute medical care; heart disease, gall stones or cancer. Medicare does not ‘care’ about diagnoses such as Parkinson’s Disease, Alzheimer’s, dementia, or long-term mobility problems. If you need long-term care, then you have lost the “diagnosis lottery”.

You are lucky if you are given a diagnosis that has a Medicare reimbursement code. However, if you need care in an assisted living facility or a nursing home, your care is not acute but long-term, and Medicare stops ‘caring’ about you. As soon as Medicare stops ‘caring’, you are on your own! You will need to have a substantial long-term care insurance plan, a deep pocket-book, or become impoverished. If you are impoverished as defined by the Medicaid program, then you will meet Medicare’s ugly sister, Medicaid.  And that is a whole other story.

“Most of the men who hit the beach with me that day now lie under little white crosses. Some news guy wrote that if you landed on Iwo Jima in the first wave and you were not hit by machine gun fire, that it was as unlikely as running through a thunderstorm and not getting wet. There was nowhere to hide on that rock. It was like fighting on the moon. No trees, nowhere to find cover. There were so many of us that every time the Japanese fired, somebody got hit. During the first three days that I was on the island, I got a bullet-hole through my shirt, my helmet, and my pants.”

These are the words of my client Fred as he described to me the experience of going up against the Japanese forces who manned the island of Iwo Jima on February 19, 1945. Many of my veteran clients have amazing stories to tell from their days in the service.

As an attorney who is focused on the issues of the elderly, an important part of my practice is to assist wartime veterans who are now over 65 and disabled. We often assist them (pro bono) by securing a veteran benefit to help pay for care for themselves and/or their disabled spouses. I am honored to have the opportunity to serve those who have served their country so well.

Fred was in my office that day to discuss how he was going to pay the over $8000 a month cost of care for his wife, who suffered her first debilitating stroke eighteen years ago and has needed care ever since.

Fortunately for Fred, a wartime veteran does have the possibility of receiving some assistance through a VA Special Monthly Pension. It’s important to understand that Aid and Attendance or the Survivor Spouse VA benefit is only available to those who meet very stringent limitations related to medical necessity for care, and financial need as determined by both income and asset limitations. It is my job as an attorney to be able to assist individuals to evaluate what, if any, VA Aid and Attendance benefits may be available to them. This VA benefit can make all the difference in helping a wartime veteran or widowed spouse maintain their dignity, home, and lifestyle.

For more information click here to download any of our .pdf guides about VA Benefits.

Recently, when friend and “founder” Luise May visited our office, Shawn Hunt and I sat down to ask about her experience as a caregiver for her Alzheimer’s–affected husband over the past nine years.  Our goal was to further understand the feelings and experiences of the people our firm strives to help–those serving as caregivers for loved ones with long-term care needs.

One of Luise’s strongest statements was the feeling that “you are trapped! Financially and socially, you are trapped.”  As a caregiver, many choices are simply taken away from you.  The only choice left is how you will respond in any given situation.  Because of this, it is not unusual for many caregivers to experience burnout.

And it’s not only the absence of choices that make you feel trapped, according to Luise, but the lack of control over basic areas of your life.  “You can’t control your schedule. You can’t control your loved one’s incontinence or sleeping times.  You can’t control what they are going to say or what they are going to do. You lose all freedom.”

When we inquired into social activities, Luise told us “I used to try to take Bob with me to concerts, because we both love music.  But eventually it got to the point where it was just too much effort and he didn’t enjoy it anymore.”  We asked if she could invite friends over to her house, but, she said, “It’s just so difficult. What do you say to them? And what do they say to you? It’s extremely awkward. In addition, there are times when Bob became very angry, and because I’m doing the care-giving, I’m right there for Bob to express his frustration.  I didn’t want other people to see that. Remember, you can’t control anything. You lose all your freedom.”

As we listened to Luise share her nine years’ experience caring for Bob at home, we could not help but admire once again all the caregivers out there.  Her story served as yet another reminder of why we at Law ElderLaw do what we do: provide counsel and help to those who lovingly sacrifice their wealth, health, freedom, and careers to provide loving care for a spouse, child, or parent.

Luise May

Law ElderLaw, LLP, is a law firm focused on the issues of estate planning, long-term disability planning, veterans benefits, and Medicaid assistance. Our eighteen staff members are attorneys, paralegals, and other support personnel.  But oddly enough, our firm did not begin with a lawyer.  Rather, our firm began with a phone call from a woman named Luise May.

Nine years ago, Luise May called me with panic in her voice, “Rick, Bob has been diagnosed with Alzheimer’s.  What are we going to do?  Am I going to lose my home? Are we going to lose everything?”

At the time, I was a tax and real estate attorney; I didn’t have an answer for Luise. But Luise and her husband Bob had been friends for years, and I wanted to help her. “Luise,” I said, “I don’t know the answer to that, but I promise I will find out.” The problem was, I didn’t know where to start looking for answers. I wanted to make sure Luise and Bob wouldn’t lose their home, but I had never even heard of the term “elder law.”

Fortunately, I discovered a capable attorney right in my home community who was doing work in what he called the Elder Law Center. I called him and told him Luise’s story, then asked if this Elder Law Center could help people in their situation. His answer was immediate; “Yes Rick, bring them on over.”

We explained that Bob had recently been diagnosed as having some type of dementia, most likely Alzheimer’s. Steve (the capable attorney) reassured my friends that he would work to make sure they would keep their home and control of their assets.  He was not able to prevent them from having substantial costs related to long-term care, but they would not lose everything, as they feared.

After the first meeting, I was stunned at the transformation in Bob and Luise.  They were exuberant. They were reassured that they would not lose their home, and in addition they had found a capable counselor to walk along beside them, serving as a guide as they moved further and further into the valley of shadow and darkness.

As I observed the legal work being done for my friends, I knew that this was the type of law that I wanted to be doing.  Three years later, I made the decision to become an elder law attorney, so that I could help more “Bob and Luise” couples.

Bob and Luise eventually moved to Georgia to live near their daughter who is a nurse practitioner. Bob has been able to live at home for more years than they initially thought possible, and it is only during the last six months that Bob finally needed to move to a long-term care facility.

Bob and Luise remain close and valued friends. Last week, it was our privilege to host Luise in our office. She had come to attend the wedding of my youngest daughter, Catherine. She was kind enough to come and share her experiences as a caregiver for a husband with Alzheimer’s. And we want to share her experiences with you, our readers. Come back next week to read her story here on our blog.