Elder Law Frequently Asked Questions

Medicaid is basically a government healthcare assistance program for individuals with low income, regardless of their age or whether they have a disability. Patients with Medicaid typically pay a small co-pay if they are required to pay anything at all. Through this program, health care expenses are paid with federal, state and local tax funds.

Since Medicaid is administered by each state, the eligibility requirements and available benefits may be different from one state to the next. Your local Medicaid lawyer will be very familiar with all of the eligibility requirements that apply to you.

Medicare is more similar to a health insurance program. There are three classifications of individuals who may be qualified for coverage under Medicare: (1) individuals age 65 and older, regardless of their income level; (2) disabled individuals, regardless of age; and (3) patients with end-stage renal disease, requiring dialysis.

Patients who receive Medicare pay only a portion of their medical care costs through deductibles and monthly premiums. Medicare benefits are most often provided by private insurance companies who enter into contracts with the government. Because Medicare is a federally run, the requirements for coverage are more uniform than Medicaid, which is controlled by state law.

Unfortunately, there is a common misconception that you can give all of your property away in order to qualify for Medicaid benefits. Often you will hear about individuals fearing they will be forced to sell all of their property when they will need long-term care, so they start transferring it to family members. However, Medicaid imposes a penalty period of five years against transfers or gifts made by the person applying for benefits.

Medicaid imposes a “five-year look-back period” when an applicant is seeking long-term coverage This penalty period can lead to a delay of benefits if you are not careful. On February 8, 2006, the Deficit Reduction Act (“DRA”) was enacted, changing Medicaid rules. All transfers after February 8, 2006 are subject to a 5-year look-back period. If the gifts were made outside the look-back period, then there is no disqualification period. If there have been any gifts in the look-back period, then Medicaid will not pay for nursing home care during the disqualification period. The disqualification period does not begin until the individual moves to the nursing home and the person would otherwise be eligible for Medicaid. If the assets are returned or partially returned, the disqualification period can be shortened or eliminated accordingly. Before you start transferring property, discuss your options with our Dallas elder law attorneys.

There are a few widely-used long-term care alternatives usually covered by long-term care insurance including home health-care services such as skilled nursing care and physical therapy, personal care in your home through homemaker services, adult day care services, and assisted living care. There are several other services that may be available in the Dallas area, including hospice care, respite care, care after a hospital stay, and caregiver training for family members. A qualified geriatric care manager can help review options in your area and usually work with elder law attorneys to coordinate an applicant’s geriatric care with their estate plans.

Legal fees will depend on the type of services and the nature of the work required. Services may include drafting trust agreements, wills, powers of attorneys, health care directives, and other estate planning instruments. Additionally, your elder law attorney may need to assist with filing a guardianship, establishing a surrogate agreement, filing an application for needs-based government assistance, and advanced planning for asset protection or long-term care.

A court appoints a guardian to manage the personal affairs of someone else after that person has been determined to be incapacitated. The consequences of being determined by a court of law to be incapacitated are serious and result in a loss of individual rights such as the right to vote and to marry., Guardianship should be the “last resort.” Guardianships should not be established merely because your loved one makes some decisions with which you do not agree or based solely on a disability or medical diagnosis.

The best way to avoid the need for a guardianship is to execute a durable power of attorney for healthcare and finances while you are still legally competent to do so. A power of attorney is a non-judical agreement to allow your designated agent to manage your financial affairs and healthcare for you when you are no longer able.