Seniors in need of care, their caregivers and family members, and disabled persons often face complicated social and legal questions relating to their care or that of a loved one. Information about public benefits programs and other care issues can be difficult to locate or are presented in legal language, making it impossible to understand. Here we attempt to answer some of the most frequently asked questions about Elder Law in a simple, straightforward manner.
- Advance Directive, Health Care Directive, Living Will
- Physicians Order for Life Sustaining Treatment (POLST)
- Durable Power of Attorney – for Health Care and Financial Matters
- Death with Dignity Act
- Elder Law
- Long-Term Care
- Long-Term Care Insurance
- Veterans Benefits
- Medicaid and COPES
- Special Needs Trusts or Supplemental Needs Trusts
- Our Fees
Advance Directive, Health Care Directive, Living Will ▲ Click to return
What is the difference between a “Living Will” and a “Health Care Directive?” Or is there a difference? Learn more about how to direct the type of health care you will receive even if you become unable to give specific directions.
The term “Advance Directive” refers to a legal document in which you specify in writing your wishes regarding what(?) your health care should you be at end of life or in a permanent vegetative condition and unable to communicate your wishes.
Advance Directive is the same thing as a Living Will or a Health Care Directive. To avoid confusion we will only use the term “Advance Directive.”
The term Living Will is confusing as it bears no relationship to a Last Will and Testament.
An Advance Directive is different than a Durable Power of Attorney for health care. A Durable Power of Attorney for health care is the legal document through which you appoint a Health Care Agent to speak for you. Not uncommonly an Advance Directive is combined with the Durable Power of Attorney for health care, providing all information about your health care wishes and who is authorized to speak for you in one document.
In every state you have the right to make your own health care decisions. Under the principle of “informed consent” your medical care must be explained so you understand it and can make informed decisions. (Treatment without consent however, is allowed and will generally be provided in an emergency unless you indicate otherwise). If you are not able to understand your medical treatment options, your Health Care Agent will speak for you based upon your wishes as stated in your Advance Directive.
If you had a terminal condition, or if you had an accident which left you in a permanent vegetative state, would you want to be kept alive?
An Advance Directive provides specific direction to health care providers about the types of treatments you do or do not want. Some people choose not to have various kinds of medical treatment, while others choose to have certain medical treatments or all available medical options (pain relief, resuscitation, artificial nutrition/hydration, intubation or mechanical intervention, such as a ventilator, dialysis, provision of antibiotics, etc.). It is your choice as to whether you want your life prolonged or if you want to be permitted to die naturally.
An Advance Directive is used only if you have a terminal condition or are in an irreversible coma or other permanent unconscious condition and there is no reasonable hope of recovery. The document must be signed by you and two witnesses who are not related to you, will not inherit anything from you and who are not individuals providing health care services to you.
It is important to let your physician and loved ones know what your wishes for treatment would be should you face a terminal illness or permanent vegetative condition. Medical facilities may assume you want all available medical treatment, including life-sustaining care, unless you direct otherwise. Your Advance Directive, together with your Health Care Agent’s direction will ensure that your wishes are honored, whatever they may be.
It is essential that you have honest and open discussions with your appointed Health Care Agent, doctor(s), clergy, and family about your wishes concerning medical treatment. Starting a conversation about end-of-life planning can be tough, but taking that step can put you at ease for whatever may lie ahead. Discuss your wishes with them often, especially if your medical condition changes.
Are Advance Directives legal?
Yes, if properly executed. There are federal and state laws that govern the use of Advance Directives. All 50 states and the District of Columbia have laws recognizing the use of Advance Directives.
Will Advance Directives be recognized in emergencies?
No. During most emergencies, there is not enough time for emergency service personnel to consult the patient’s Advance Directive. Once the patient is under the direct care of a physician, there will be time for the Advance Directive to be evaluated and/or the Health Care Agent to be consulted.
Physicians Order for Life Sustaining Treatment (POLST) ▲ Click to return
For individuals with serious health conditions who are in the final year of life, or suffering from an advanced stage terminal illness or illness from which they are not expected to recover, a Physicians Order for Life Sustaining Treatment (POLST) form is available.
Idaho’s form is called a Physician Orders for Scope of Treatment (POST)
POLST forms allow individuals to summarize their wishes regarding end-of-life treatment. The POLST is complementary to the Advance Directive. A POLST form is a medical order, signed by you and your physician, which outlines specific medical orders to be honored by health care workers during a medical crisis. The POLST is a brightly colored form (often green) which is immediately recognizable and can be used by doctors and first responders (including paramedics, fire departments, police, emergency rooms, hospitals and nursing homes). POLST forms are recommended only for individuals who no longer wish to be resuscitated so that they may die naturally. A POLST form is usually posted on a refrigerator or other conspicuous place where it will be seen by first responders.
Who can make decisions for me if I am unable?
If you lose the ability to communicate and make health care decisions, state laws grant authority for someone to speak for you, even if you don’t agree! Thus is it very important that you designate who should speak for you through a Durable Power of Attorney. Without such a document the following people, in order of priority, are authorized to make health care decisions for you, including withdrawing or withholding care:
- A guardian with health care decision-making authority, if one has been appointed
- The person named in the Durable Power of Attorney with health care decision-making authority
- Your spouse
- Your adult children
- Your parents
- Your adult brothers and sisters
When there is more than one person, such as children, parents or brothers and sisters, all must agree on the health care decision.
Making your wishes known in an Advance Directive will provide your doctor and your Health Care Agent the clear guidance necessary to carry out your wishes.
Do I need both an Advance Directive and a Durable Power of Attorney for health care?
Yes. Having both an Advance Directive and a Durable Power of Attorney for health care will provide the best protection for your treatment wishes and comprehensive guidance regarding your care.
Durable Power of Attorney – for Health Care and Financial Matters ▲ Click to return
Who would you want making your health care decisions if you were unable?
Who would you want making taking care of your financial matters if you could not?
A Durable Power of Attorney is a legal document through which you grant authority to a trusted individual to act on your behalf. It does not take away your authority. And it can be revoked at any time (as long as you have the capacity to do so). Durable Powers of Attorney for health care and financial matters can be separate documents or a combined document. It is “durable” because it remains in effect even should you lose capacity.
The Durable Power of Attorney for health care is a legal document in which you authorize someone to make health care decisions on your behalf in the event you are unable to do so due to illness or incapacity. The Durable Power of Attorney for financial matters grants authority to your Attorney-in-Fact (often referred to as your “POA”) to manage your finances.
Your Durable Power of Attorney for health care authorizes a trusted individual to speak for you if you are unable to do so due to illness or incapacity. This person is known as your Health Care Agent. Your agent must follow your wishes regarding the provision or withholding of medical treatment. The person you choose should be a trusted family member or friend with whom you have discussed your values and medical treatment choices.
A Durable Power of Attorney allows for responsiveness to changing health care situations as the Health Care Agent that you appoint expresses your wishes and will be able to respond to unexpected changes in your condition and base decisions not just on your written wishes, but also on their familiarity with you and your desires regarding your care.
Death with Dignity Act ▲ Click to return
Washington is one of just a few states in the U.S. which allows an individual who meets residency and medical diagnosis requirements to request lethal doses of medication which will hasten end-of-life. The Washington Death with Dignity Act, Initiative 1000, codified as RCW 70.245, passed on November 4, 2008 and went into effect on March 5, 2009. This act allows terminally ill adults seeking to end their life to request lethal doses of medication from medical and osteopathic physicians. These terminally ill patients must be Washington residents who have less than six months to live. The Act contains many protections to ensure that the person is competent, acting voluntarily, and making an informed decision.
Elder Law ▲ Click to return
Some attorneys deal primarily with the legal problems facing older clients, disabled persons, and the families who care for them. Is “Elder Law” a recognized legal specialty? How can you find a qualified Elder Law attorney?
What is Elder Law?
Elder Law is a rapidly-growing practice emphasis for lawyers who choose to represent older clients and handle the kinds of issues commonly faced by seniors, the disabled, and their loved ones and caregivers. Elder Law goes beyond the realm of traditional Estate Planning to address the legal and social issues affecting seniors, the disabled and vulnerable adults. Finding, keeping and paying for Long-Term Care is an integral part of Elder Law.
Is Elder Law a recognized legal specialty?
State Bar Associations or Supreme Courts in some states (including Washington) have formally recognized Elder Law as a legal specialty. In those states lawyers may be able to advertise that they specialize in Elder Law if they have met specified qualifying criteria, which usually include a written examination and evidence of extensive experience in the area.
Are there any other credentials an Elder Law attorney might demonstrate?
In Washington an Elder Law attorney may be a member of organizations focusing on Elder Law, such as the Washington Academy of Elder Law Attorneys, as well as national organizations like the National Academy of Elder Law Attorneys. Some attorneys may also hold CELA (Certified Elder Law Attorney) credentialing.
What are the legal practice areas in which Elder Law attorneys engage?
Although the legal problems of seniors span the entire gamut of legal issues, a handful of topics arise for seniors more regularly than others. Most lawyers who focus on Elder Law are intimately familiar with guardianship, Medicaid and Long-Term Care planning, Estate Planning, Special/Supplemental Needs Trusts, Trust administration and Probate, although not all Elder Law attorneys practice in all of those areas. Some may also specialize in related issues, such as elder abuse, senior exploitation and nursing home litigation.
Elder Law Group emphasizes a holistic approach to Elder Law to ensure quality of life, maintaining the autonomy of dignity of the senior, while preserving assets. Our firm focuses on Estate Planning with asset protection, Special/Supplemental Needs Trusts, Long-Term Care issue, government benefits, including Medicaid and Veterans benefits, Medicaid Asset Preservation Strategies©, Probate and Trust administration.
Are there legal practice areas that Elder Law attorneys are uniquely qualified to handle?
As with other professional specialty areas, the ability of individual Elder Law attorneys to handle specific matters will vary with the experience, competence and credentials of the individual lawyer. Some of the topics that are not as widely understood by lawyers other than Elder Law attorneys might include Medicaid and Long-Term Care planning, Special Needs Trusts, Estate Planning for disabled family members and Advance Directives.
How can I find an Elder Law attorney in my area?
The National Academy of Elder Law Attorneys (NAELA) provides an online resource for locating a member of that organization. NAELA is the only national organization of Elder Law attorneys, and has over 3,000 members hailing from every state (and a few U.S. territories and foreign countries). As with other legal practice areas, the best method of locating a competent Elder Law attorney is probably to solicit suggestions from friends, relatives and colleagues, conduct on-line research and find out the attorneys rating and what clients say about the attorney. Then contact the Elder Law Attorney and ask questions about their specific experience, training and interests. An important question is how much of their practice is devoted to Elder Law?
At Elder Law Group we focus 100% on Elder Law.
Long-Term Care ▲ Click to return
What is meant by “Long-Term Care?”
Medical care or personal assistance provided by a caretaker or a facility for a period of weeks or months (or longer) is Long-Term Care. Neither the level of care nor the length of time are perfectly defined. “Long-Term Care” refers instead to the condition of extended or permanent dependence on care from another.
In what settings might Long-Term Care be provided?
Long-Term Care can be provided in nursing homes, adult family homes, assisted living facilities, congregate living arrangements, adult day care centers and in a person’s own home or apartment. This list of Long-Term Care settings is arranged roughly from more restrictive to less restrictive settings, though seriously impaired individuals might be cared for at home in surroundings that mimic more institutional settings, and some institutions (especially adult care homes) may be homelike and relatively inviting.
How much does Long-Term Care cost?
The cost of Long-Term Care varies widely by geographic region, level of care and individual facilities and caretakers. Costs vary tremendously, with larger metropolitan areas and eastern states generally seeing higher costs than smaller communities in the south and west.
In Washington the average statewide rate for skilled nursing is $8,396 as of April 2015, according to Medicaid. In practicality, however, the rates charged often are $10,000 to $12,000 per month.
Adult family homes and assisted living facility typically charge about half of the skilled nursing rate. The actual cost is dependent upon the care provided and the facility.
Care in the home may be the least expensive or most expensive, depending upon the level of care needed.
Who pays for Long-Term Care?
Care provided by family members without formal payment probably accounts for the largest share of Long-Term Care provided. More formal Long-Term Care arrangements in the home and in institutions are paid for by the person’s income and savings, Long-Term Care insurance, and government benefits, such as Veterans benefits, and Medicaid.
How much of the cost of Long-Term Care is paid by the federal Medicare program?
Medicare covers only a small portion of the total national cost of Long-Term Care. If home care is included in the calculation, as much as 20% of Long-Term Care costs are paid by Medicare. If only institutional care is considered, Medicare pays less than half that percentage.
Why does Medicare’s Long-Term Care benefit pay such a small portion of the cost of Long-Term Care?
Medicare provides coverage for up to 100 days of Long-Term Care for its beneficiaries (generally speaking, those who are over age 65 or disabled and who are eligible to receive Social Security retirement or disability benefits). Medicare limits its Long-Term
Care benefit in skilled nursing facilities to exclude “custodial care”. Thus Medicaid pays for rehabilitation services, such as physical therapy, occupational therapy and speech therapy, but not for facility costs if rehabilitation care is not being provided.
What insurance programs pay for Long-Term Care?
Insurance coverage of Long-Term Care benefits comes from two primary sources: so-called “Medigap” policies and Long-Term Care insurance. “Medigap” insurance is available to Medicare beneficiaries, and covers the copayment and deductibles incurred by those beneficiaries. Because the copayment for Long-Term Care benefits is so large, Medigap coverage can provide a significant benefit to patients, but only if they can meet the rehabilitation requirements of Medicare’s Long-Term Care coverage.
Long-Term Care insurance, on the other hand, is not dependent on Medicare’s limited definition, and will pay for nursing home, assisted living or home care in accordance with the terms of the individual insurance contract.
Who pays the rest of the national nursing home cost?
By far the largest contribution to the cost of institutional Long-Term Care in recent years has come from the federal/state Medicaid program.
Long-Term Care Insurance ▲ Click to return
This type of insurance contract is gaining in popularity as people become familiar with the cost of Long-Term Care. Are there pitfalls to watch for in buying Long-Term Care insurance? How much will such insurance cost, and does it make sense to buy a policy?
What is Long-Term Care insurance?
Long-Term Care insurance is an insurance product designed to protect against the high cost of nursing home and community based care. When an individual becomes physically or cognitively frail and is no longer able to care for him or herself safely without assistance, home care services, assisted living, memory care, or nursing home care may become necessary. Long-Term Care insurance is designed to fund these care-giving needs. These can arise at any age, but they are most common when compounded by frailty accompanying the natural aging process. Typically, the longer an individual’s life span, the more significant this compounding effect can be.
Why would you purchase Long-Term Care insurance?
Some individuals will qualify for government assistance with the cost of Long-Term Care relatively easily (usually through the federal/state Medicaid program). Others have sufficient wealth to pay privately for Long-Term Care for the rest of their lives. Most middle class Americans, however, will want to consider Long-Term Care insurance for one or more of these purposes:
- To prevent impoverishment of the spouse who does not need care: the “well spouse”
- To protect an estate’s depletion for inheritance by children or other beneficiaries
- To prevent relying upon Medicaid to allow greater options for care placement
- To increase the likelihood that care can be provided in the home, and nursing home placement avoided altogether
As a person ages, he or she may reach a point, either temporarily after an illness or injury, or permanently, when he or she is unable to provide self-care without help. Depending on the person’s abilities, home care services, assisted living, memory care, or skilled nursing care may become necessary. Long-Term Care insurance is designed to help pay for these services as needed at any age, but especially for those who face the challenges of aging.
Veterans Benefits ▲ Click to return
Benefits to U.S. Veterans include health care, disability compensation, burial, pension and Long-Term Care.
A pension benefit is paid to wartime Veterans who have limited income and assets and who are either over 65 or are under 65 and disabled. There is no service-connected injury or disability requirement, however.
To apply for Veterans benefits, contact (800) 827-1000 to find the nearest Veterans Service Office.
Medicaid and COPES ▲ Click to return
What is Medicaid?
Very simply stated, Medicaid is a government-funded health care program for individuals with low income or limited resources. Medicaid provides benefits to pay for Long-Term Care costs.
Many planning techniques exist to preserve assets and achieve current or future Medicaid Long-Term Care benefits eligibility.
What is COPES?
COPES is a Medicaid program that pays for Long-Term Care in a person’s own home, adult family home, or assisted living facility. It is designed to help people who, without COPES, would need to be in nursing homes.
What is the difference between Medicaid and Medicare?
Because these programs have similar names, they are easily confused.
Medicare is a purely federal program of health insurance available to people 65 or older or who have certain disabilities, regardless of income.
Medicaid is a program jointly funded by the federal and state governments available only to those who have insufficient assets or income to pay for their own care. Each state has its own Medicaid program. Thus, if you are planning to retire to or move a loved one to another state, you should consult an Elder Law attorney to understand the impact of this decision. Medicaid is often used to fund Long-Term Care.
What benefits does Medicaid provide?
Medicaid benefits can be divided into two broad categories: acute care and Long-Term Care (there are also separate program rules for the developmentally disabled and the seriously mentally ill, but they are beyond the scope of this FAQ). Eligibility for each kind of benefit is different, though they are similar.
Does Medicaid pay for nursing home care?
Does Medicaid cover prescription medications?
Yes, the Medicaid program pays for all prescription drugs. Medicaid beneficiaries may receive their drugs through Medicare’s Part D program, but the premiums and co-
payments are paid by Medicaid.
Does the Medicaid recipient have to pay for any portion of his or her care?
Yes. The recipient’s portion is known as “participation.” The participation amount is calculated from the recipient’s gross income, less the amount of supplemental insurance premium paid by the recipient, less their personal needs allowance. The recipient’s participation is paid directly to the facility or care provider.
Will the state file a lien against a recipient’s home or property?
The state has a right to recover Medicaid costs paid on a recipient’s behalf from the estate of a deceased Medicaid recipient over the age of 55. This may include a lien against any real property owned by the deceased Medicaid recipient. Through utilization of Medicaid Asset Preservation Strategies©, estate recovery liens can be avoided in many instances.
Must an applicant’s home be sold to qualify for Medicaid?
No. A home is an exempt resource, though for single people there is an equity limit. If a home is gifted, usually in an attempt to preserve the asset or avoid the state’s lien, a penalty period of ineligibility will be imposed.
However, there are exceptions where the home may be gifted without penalty; for example to a disabled child or to a “caregiver child”. Due to the complex rules applicable to transfers, anyone considering gifting or transferring any asset, including the home, should first consult with an experienced Elder Law attorney.
What other assets can a Medicaid recipient retain?
In addition to the home, a Medicaid recipient is also permitted to retain an automobile (without any limitation on its value), household furniture and furnishings, prepaid funeral/burial benefits, a burial plot, a burial fund of $1,500 or less or a life insurance policy with a face value of $1,500 or less, certain sales contracts, a Long-Term Care partnership insurance policy exemption amount, items listed for sale that cannot be converted to cash within 20 days, business property upon which the person relies upon for support. Other than those categories, a single person’s total assets must be under $2,000.
Many planning techniques exist to preserve assets and achieve current or future Medicaid Long-Term Care benefits eligibility.
What assets can a married couple retain and still have one spouse qualify for Medicaid benefits?
The rules are much more complicated and generous for a married couple where only one spouse will be institutionalized. All assets available to either spouse (for these purposes, community property and other ownership rules are not considered).
Currently, Washington allows combined non-exempt resources of a married couple $55,016, up to $121,220 if skilled nursing care is needed.
The resources for both spouses are counted, regardless of whether the property is community, separate or held in trust. All assets are valued according to the fair market value of the applicant’s equity interest in the resource.
How much income can a Medicaid recipient have?
A single person’s income must be less than the private pay rate in the nursing home plus the applicant’s regularly recurring monthly medical expenses (health care premiums, prescriptions, etc.).
For one spouse of a married couple to receive Medicaid benefits, the income of that spouse must be less than the private pay rate in the nursing home plus the applicant’s regularly recurring monthly medical expenses (health care premiums, prescriptions, etc.).
How much of a couple’s income can be retained by the spouse who does not receive Medicaid benefits?
In addition to the personal needs allowance mentioned above, the recipient’s spouse may be entitled to keep some or all of the applicant’s income to pay for his or her living expenses. The calculation of this amount, referred to as the Minimum Monthly Maintenance Needs Allowance, is complicated and will vary significantly in individual cases. One piece of simple (and good) news: the community spouse is not required to contribute any portion of the income in his or her name alone toward the “share of cost.”
What is meant by the “lookback” period for Medicaid benefits?
When an application is filed, Medicaid’s financial eligibility worker will inquire about any gifts made by the applicant, the applicant’s spouse or anyone acting on behalf of either of them within the preceding 60 months. This five years before application is known as the “lookback” period. Gifts made before that period will not affect eligibility. Gifts made during the “lookback” period usually will result in a period of ineligibility, and that disqualifying period will not start to run until the applicant has already spent down all of his or her assets and applied for benefits.
Can someone receive Medicaid benefits even if they have made gifts during the preceding five years?
If gifts have been made during the “lookback” period, the applicant will be ineligible for a number of months calculated from the date of application (NOT from the date of the gift). The ineligibility period is determined by dividing the value of the gift by a number intended to approximate the monthly cost of Long-Term Care in the community. The actual application of this penalty period is further complicated by multiple gifts, return of some or all of a gift and other factors. This overview must be reviewed with caution, and we recommend you consult with an Elder Law attorney for help interpreting a specific gift.
Can Medicaid applicant purchase a new home, car, home furnishings or prepaid burial arrangements?
Yes. Available resources can easily be made unavailable by purchasing exempt assets.
How can annuities benefit Medicaid recipients?
A Medicaid-compliant annuity is a critical planning tool available in Washington. It results in the conversion of countable resources to non-countable and allows almost immediate resource eligibility without a five year look-back concern!
The best advice is to seek the help of a skilled and compassionate Elder Law attorney.
The best time is well before you or a loved one needs Long-Term Care!
Probate ▲ Click to return
Is it critically important to avoid probate? What costs and taxes are associated with probate? Are all estates probated? There are innumerable myths and misunderstandings about probate, its cost and how or whether to avoid it.
What is Probate?
Probate is the legal process for transferring property upon death. It is a relatively quick and inexpensive process in Washington and Idaho.
What are the costs associated with probate?
In addition to filing fees, copy costs and recording fees, the cost of probate mostly consists of legal fees. The personal representative may also charge a fee, but if he or she is also a beneficiary of the estate it is not uncommon for the personal representative to waive any fee.
Are beneficiary designations a good probate avoidance approach?
Beneficiary designations are used to direct non-probate assets (those not governed by a Will), such as life insurance policies, retirement accounts and other financial accounts. This is a critical part of an estate plan which is often overlooked.
Is the best choice to establish a living trust?
A Revocable Living Trust is an arrangement for the management and distribution of your property. Such an arrangement is revocable during your lifetime. Your assets are transferred to the Trustee of the Revocable Living Trust, who manages and distributes the property according to the terms of the trust.
A Revocable Living Trust can be a good Estate Planning tool for those who own property in other states. However, unless it is properly funded and administered, upon the Trustor’s death there will need to be both a trust administration and a probate.
Also, it is very important to understand that Revocable Living Trusts provide for no Medicaid planning benefit in Washington.
Are there any good things about probate?
Yes! Not only does it provide for protection from creditors, but it also is the only way in Washington to establish a Supplemental Needs Trust for a surviving spouse. Assets within a testamentary Supplemental Needs Trust are non-countable for government benefits, are not available to creditors, and not subject to the state’s lien for benefits paid. A Will with a Supplemental Needs Trust is the best asset protection tool available for couples who wish to ensure the surviving spouse does not become impoverished.
When is probate required?
Assets in the decedent’s name alone, with no joint tenancy and no beneficiary designation, must go through the probate process to determine who is entitled to receive them. If some assets must be probated, that does not mean that every asset the decedent owned is subject to the probate process — only those assets in the decedent’s name alone need to be probated.
Is there a mechanism to avoid probate for small estates?
Yes. An estate of less than $100,000 can be administered through use of a simple affidavit if the decedent owns no real property solely in their name.
What about estate taxes and probate?
Estate taxes are calculated on all assets which were subject to the decedent’s control just before death. Federal estate tax is due on estates of more than $5,430,000 in 2015. Washington State’s estate tax exclusion amount in 2015 is $2,054,000.
Does that mean my children will have to pay income taxes on what they receive from my probate estate or trust?
No. Inheritances and gifts are not income to the recipient. Two important qualifications to this broad principle: (1) IRAs and qualified retirement funds will be income to the recipient when withdrawn, whether that is you or your heirs, and (2) inheritances may include some portion of income earned between the date of death and the date of distribution — and that income is subject to income taxation to the recipient.
Special Needs Trusts or Supplemental Needs Trusts ▲ Click to return
When individuals with special needs who receive government needs-based benefits receive money from personal injury settlements, inheritances or other sources, they can lose their public benefits. You can structure your estate so that you can provide assistance to your disabled child or grandchild without jeopardizing their receipt of benefits. This can include a surviving spouse who may need Long-Term Care. Such a trust preserves those benefits and sets aside additional funds for the person with special needs. For a surviving spouse needing Long-Term Care, such a trust renders those assets non-countable for Medicaid qualification.
What is a “Special Needs” or “Supplemental Needs” Trust?
“Special Needs” or “Supplemental Needs” describes any trust intended to provide benefits without causing the beneficiary to lose public benefits he or she may be entitled to receive.
Does a “Supplemental Needs” trust differ from a “Special Needs” trust?
No. Both are interchangeable, and describe the purpose of the trust rather than being a limited legal term.
Does the existence of a Special or Supplemental Needs trust qualify the beneficiary for public benefits?
No. The existence of a Special or Supplemental Needs Trust does not itself make public benefits available. The beneficiary must qualify for the benefits program already, or qualify after the trust is established. If properly established, the trust will not cause a loss of benefits.
Our Fees ▲ Click to return
Do you charge for the first meeting with an attorney at Elder Law Group PLLC?
Yes. Our office charges an initial consultation fee (currently $375 for most types of matters).
Why do you charge for the first meeting?
We know your time is valuable, and so is ours. We expect to accomplish quite a lot at our first meeting with you. We want to determine the scope of the problem, offer you suggestions on how to address it, help you decide how to proceed, and collect the information that we will need to begin the work. For this reason, we send you a questionnaire to complete and bring with you to the first meeting. Though you may not have met us before, that initial meeting is far more than a “getting to know you” session. At the end of the consultation you will have a clear picture of the path forward to address your legal needs.
Do all (or most) lawyers charge an initial consultation fee?
Some do and some don’t. There are other lawyers and firms who do not charge an initial consultation fee. While we have not conducted any studies, and know of none available, we suspect that practitioners are about evenly split on the subject. We do not begrudge those who choose not to charge an initial fee, and we do not maintain that our fee is evidence that we are better lawyers. We have found, however, that the initial consultation fee helps focus our (and our clients’) attention on the issues during that first session, and is fair to both client and lawyer.
How much will this (legal work) cost me?
At our first meeting, we will discuss your situation and the nature of the work that needs to be done, describe what we propose to do, and give you an estimate of how long that might take. We will prepare a fee agreement that spells out the work to be done and the fee we will charge. It will indicate whether you are paying a flat fee or an hourly fee and how often you can expect us to bill you. If the scope of the work changes, or if you require additional work that was not discussed at the initial meeting, we will prepare a new fee agreement to cover the additional work.