I just finished looking at a county bar association listing of attorneys who identify themselves as elder law attorneys.  Frankly, I was a little surprised to see that some individuals who are general practitioners also consider themselves to be elder law attorneys.  I was disturbed when I saw this, because drafting simple wills and trusts does not qualify an attorney to be an elder law attorney.  Wills and trusts may be part of the elder law process at times—but there is so much more involved than that!  Furthermore, litigating cases that have nothing to do with probate or other issues that touch the elderly does not qualify an attorney to be an elder law attorney.

Will the real elder law attorney please stand up?

When trying to find an “elder law”-focused attorney, it’s important to understand how elder law differs from traditional estate planning.  Estate planning, at its simplest, is death planning.  A traditional estate plan is typically designed to do three things:

1. Minimize estate taxes; and
2. Avoid probate court; and
3. Distribute assets from the deceased to the deceased’s heirs.

Elder law, on the other hand, is death planning plus long-term disability and care planning.  The elder law attorney is not only dealing with your estate plan, but must also deal with life care issues in the event that you or your spouse has long term health care needs during the course of your lifetime.  When there is no long term care asset preservation planning, it is quite common to see families spend a $2,000,000 net worth estate when both a husband and wife have long term care needs.  This is a key focus of an elder law attorney.

No one wants to be out of money and out of options before they are out of breath.  While it’s not possible to guarantee specific results, the elder law attorney works with clients and families to guide them through the minefield of public benefits, VA benefits, Medicare, Social Security, special needs trusts, powers of attorney, and Medicaid. Our job is to increase the quality of life for our clients, not just plan for a happy post-death asset distribution.

So if you are trying to figure out who is the real elder law attorney, please ask these questions: “How many Medicaid applications do you/your firm do in a year?” and/or “How many veterans do you/your firm assist with the VA aid and attendance benefits per year?” and/or “How many self-settled Pooled Trust plans have you/your firm done this year?”   If you are looking for an elder law attorney to do any of these things, please use an attorney who can demonstrate that he or she is working in that area every day.  The issues are complex, and you deserve to work with someone who is fluent in elder law.

Cowboy Rick (on the right) in New Mexico

“R.W. Hampton.” (On the left)

Like most baby boomers, I grew up in the age of the TV-cinema-cowboy-hero. Through television, the good guys of the cinematic Old West rode, roped, and fought their way into our hearts and minds. We boomers were saturated with the “Code of the West.” Our heroes were simple and straightforward about their virtues—and it was always easy to recognize the Bad Guys.

The Bad Guys rustled stock from the honest folk. Bad Guys—some disguised as bankers and businessmen—misused their power and position to cheat good and hard-working citizens out of their homes, ranches, and livestock. Meanwhile the Good Guys wore white hats (with the exception of Hopalong Cassidy) and selflessly fought evil as they helped the poor, oppressed, innocent, and vulnerable.

When I first went to law school, I carried that “cowboy code” inside me. Like many idealistic law students, I imagined using my legal skills to fight injustice and protect the innocent—just as my heroes had done. But I soon found that real lawyering is seldom as glamorous and interesting as a TV show—so like most attorneys, I spent the better part of my first 25 years becoming very efficient and effective at moving mountains of real estate and tax documents for clients. It was not the work of a hero, but it paid the bills.

Without recognizing it, my legal career began to change in 2000. Due to the aging issues of my parents’ generation, I became a part of a “tribe” of lawyers who practice elder law. This is a niche legal practice that combines estate planning, taxation, health care, Medicare, Medicaid, elder abuse, and more to focus on assisting the frail elderly to achieve the goals of quality health care while avoiding needless impoverishment. Most of these elder law attorneys are boomers who have dedicated themselves to serving seniors and those who love them. Most of the men and women I have met through the National Academy of Elder Law Attorneys (NAELA) have been touched by a loved one’s long-term illness or a disability. They strive selflessly and sacrificially to help the widow(er), the caregiver spouse/adult child, and the frail elderly.

To me, those elder law attorneys are the modern equivalent of Dale Evans, Roy Rogers, or Hopalong Cassidy. I am proud to have learned from them and to know them as colleagues and friends.

Years ago, when my wife I announced to her parents that we were expecting our first child, my father-in-law inquired innocently if it was okay to talk about someone being pregnant. He had been raised with rules that made that conversation out-of-bounds. My, how things have changed! These days we need only to turn on the TV to be subjected to conversations about PMS or flagging male libido.

In this time when “anything goes,” I have been surprised to find that there are still some taboos. As an elder law attorney, I facilitate discussions about life, death, and disability—not an easy task because nobody really wants to talk about his or her own death.

Oh sure, people can consider that they are probably going to die…someday. But in their heart of hearts most people can’t believe that they are actually going to die. How else do you explain the fact that 85% of the adult population are without a simple will, power of attorney, or health care directive?  The most obvious answer is that they must not truly believe that they’re going to die.

Although it’s difficult, I recommend that you take the time during the upcoming holidays and family gatherings to have what we call the Final Arrangement Conversation with your family.  A Final Arrangement Conversation should have at least two distinct elements:

1. A written expression of your attitudes and desires for life-prolonging treatment (or lack thereof) in the event that you are incapacitated, have been diagnosed as being terminally ill, or are suffering from a long-term memory-robbing illness; and
2. A written expression of your attitudes, desires, expectations, payment source, etc. regarding your final wishes–how your family should handle your funeral, burial, cremation, religious tradition, probable cost, music, choices of service providers, etc.

When I begin this conversation with clients and their families,  I almost always run into resistance. Seniors (even terminally ill seniors) often say, “I don’t care. Funerals are for the living, so do whatever you want.” But families really want to know how their loved ones feel about these issues. When seniors choose to talk about it, they often find it very meaningful to share their expectations. Once we overcome this conversational taboo, the discussion almost always ends with a hug.

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.”

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.

I received a phone call the other day–a call from a person who is sinking.  Not from an elderly client himself or herself–but from the caregiver child.  In my office “the kids” don’t play with Barbie or G.I. Joe anymore. They vary in age from 30 to 80.  If mom or dad are in their 90s or over 100, it is possible to have children aged 60 to 80.  A phone call to our office often begins like this: “My mom is elderly and ailing, and my siblings and I need advice on how to help her.  Our folks have a decent monthly income and assets, but the nursing home costs are three times that much! Nobody made any plans for this. My parents never expected to live this long. We don’t know what to do.  I can’t have them live with me. Help me, please.  I don’t know what to do for them.”

The call from the kids has several possible motives, and more specifically, several underlying emotions:

• Love and responsibility: to provide the best care for mom or dad with the least destruction of their assets during their lives.
• Seeking relief: the need to lift the care and cost burden off the caregiver, who may be the caller himself or another loved one.
• Fear of loss: the desire to conserve the benefits of the parental assets, either during the parents’ lives or at the time of their deaths.
• Greed: the desire to get access to the parents’ assets so the assets will not be “lost.”
• Confusion: Looking for a source of care and comfort at a time of great emotional and financial stress.
• Guilt: for not being able to do more for a needy parent, spouse, or other loved one.
• Shame: one man recently said to us, “I just can’t believe that I have to put the love of my life in a nursing home.”
• Anger: “Why did my parents not plan better?” “Why me? My siblings never help me take care of dad.” “I wish he would just die.”
• Frustration: over conflict with declining parents.
• Self-preservation: worry about how much of their own limited resources must be used to provide parental care.

Often we get a phone call from the child or spouse caretaker because the person in need of care isn’t ready to admit yet that they need help.  We can’t force a parent to get assistance, but we can be the “voice of authority,” to tell them when it’s time to start letting go and facing reality.  It is our job as elder law attorneys to help our senior clients–and those who love them–make tough end-of-life and long-term care decisions.  We walk alongside of them and serve as a guide through the elder care journey.

Nationwide evidence tells us that the long-term care burden overwhelmingly falls on the women of the family.  In their youth men are generally physically stronger than women, but as they age they decline more quickly.  Compounding the problem, men often cling to a machismo that causes them to deny their own mortality and to under-appreciate the catastrophic burden that old age frailty will place on their wives or children.  It is not uncommon, when talking to a man about the possibility of old age decline, to have him say things such as:

• “My dad died at sixty of a heart attack–I’m sure I’m not going to live any longer than that.”
• “I won’t rust out, I’ll burn out.”
• “Before I’ll go to a nursing home I’ll put the muzzle of a gun in my mouth!”
• “I’m gonna keep going until one day I just drop in the harness.”

It seems to be a natural part of being male to assume that bad things happen to other people, not to yourself.  The result of this attitude is that the women of the family are faced with caring for more and more frail men who have either refused to purchase long-term care insurance, or refused to modify their lifestyles to minimize the possibility of chronic illness.  Women are forced to exhaust their own financial and physical resources to care for their men.  By the time the first spouse dies, the caregiver spouse is often depleted both physically and financially.  She has no reserves as she faces her own long-term care crisis.

At Law ElderLaw we not only strive to serve our client, we also strive to help rescue the embattled caregiver.  Survivor spouse preservation is one of our key goals when working with a couple who are faced with nursing home challenges.

We recognize the contribution of the women who carry the burden of their own parents, their husbands’ frail parents, and/or their own husbands.  We serve as allies to the heroic caregiver.  We understand their burdens, confusion, anger, hopelessness, sense of injustice, fear, and loneliness.  We come alongside them, so that they can find a measure of peace of mind, a caring and listening counselor, and possible financial and long-term care assistance by calling us here at Law ElderLaw.

A sweet 82 year old gentleman shuffled into my office the other day. I have known him for over 35 years, so I could not help but notice that he is now bent over with scoliosis and arthritis of the spine, and his breathing is quite labored. Salt of the earth, he is; He and his wife have a simple home, and are frugally living on what they perceive to be a “comfortable” retirement. Like many seniors, their combined pension/Social Security income is approximately $2,200 a month.

This man is in my office because his wife, age 81, is declining—she has arthritis in her back, shoulders, and hands, and is currently in the rehab center of a local nursing home recuperating from a fall at home that resulted in compression fractures of her vertebrae. She is also having problems with her short-term memory. Yet when I ask him how he is doing, he tells me, “I’m okay. We’ve been handling things at home. But I am a little worried that I may not be strong enough to help my wife when she gets released from the hospital.”

The ideal solution for this all-too-common situation would be for the couple to hire some in-home nursing care on a long-term basis, or perhaps a move to a long term care facility. However, when I suggest this to clients the reaction is often fear, or resistance at the very least. They aren’t ready to take that step yet; they don’t know what it entails, and are afraid they will lose their independence. Many of them also feel they can’t afford the cost of long term care, and are determined not to resort to Medicaid. In fact, when I mention Medicaid to the client whose story is featured in this post, his reaction is strong: “I don’t want to use Medicaid. I am afraid of Medicaid.”

My client doesn’t understand yet that Medicaid is his only governmental assistance option in the event that his wife must go into an assisted living facility or nursing home. He also doesn’t yet realize that assisted living of some kind is all but inevitable. This confusion could be avoided if the subject is approached before a crisis hits, but broaching the topic is not easy. Often it is one of the children or grandchildren who have to bring it up.

In this case, as with many others, the earlier the subject is brought up, the better. If you aren’t sure how to begin looking into long term care, there are a few websites that can get you started, including Long Term Care Living, and this guide from the AARP website.

The law surrounding elder care issues can be confusing to those who don’t deal with it every day, especially the laws concerning Medicaid, which are murky and convoluted. Our role here at Law Elder Law is to help seniors understand their options for assisted living and Medicaid, and help them plan for a future in which they can be comfortable—both physically and financially.