Not the Same Old Elder Law

Many attorneys focus their practice on Elder Law to better represent our growing senior population. But as the Elder Law practice grows and matures, it also changes.

Over the past twenty years Elder Law has developed into a spe¬cialized area of law. Many attorneys focus their practice on Elder Law to better represent our growing senior population. But as the Elder Law practice grows and matures, it also changes.

Elder Law attorneys change their practice and the advice they give to clients to stay abreast of the ever changing laws. This means that the Elder Law advice you received years ago, while good and relevant to your legal situation at the time, may not be the same advice that you would receive today.

On a practical note, here are some of the changes that you must note.

Gifting Rules
A few years back, it was a com¬mon Elder Law practice to do “half¬loaf” gifting. The older family mem¬ber would gift half of her assets to her children. This gift would have to be reported to the Dept of Public Welfare if the older family member needed nursing home care within the next 36 months, but the ineligi¬bility period had either expired or she would use the other half to pay through the difference.

This “half-loaf” planning doesn’t work today. Today there is a

60 month look back period for gifts, but even worse the resulting ineli-gibility period doesn’t start running when the gift is made. You could be stuck with an ineligibility period and have no money to cover that time frame.

Elder Law attorneys still counsel clients on gifting, but with special care to look for exceptions to the gift rules. Sometimes the attorney can use annuities or promissory notes to trigger the start of the in¬eligibility period and cover the time frame.

Power of Attorney
The law regarding powers of attorney is constantly changing. The Power of Attorney document that you signed a few years back should be updated to reflect the new changes in the law. Including the power to make unlimited gifts is more important than ever as the Dept of Public Welfare tightens its estate recovery program. Powers of Attorney signed years ago should be updated to reflect our new Health Care Power of Attorney statute.

Last Will and Testament
Even your simple Will should be updated if you have started an asset protection plan. In a recent Penn-sylvania case, the appellate courts overturned the creation of joint in-vestment accounts where the older client failed to later change her Will to reflect the changes made with the new joint accounts.

Estate Recovery
DPW is looking to expand their estate recovery program to include any asset that you have an interest in, not just your probate estate. The House Bill that I discussed in my last article is reportedly not going to be passed in Harrisburg; however, look for expanded estate recovery to an issue that we will have to ad¬dress again in the future.

Bad News and Good News
The bad news is that the laws concerning Elder Law issues are complicated and always changing. You can’t rely on the good old El¬der Law advice from years ago. The good news is that the Elder Law attorney has kept abreast of these changes and can help you navigate these difficult issues.

Where do we find answers to these questions?
We have been helping families like you with these and other Elder Law issues since 1990. The Malee Law Firm has devoted its practice to helping you understand your long term care options and protect what’s yours now. The earlier you act, the more options are available to you, but it’s never too late to plan.

Resources: 

Sept-Oct 2009