For those of us who are lucky enough to live a long life, aging is unavoidable. With it comes a host of legal questions and concerns that you may have for yourself or for aging parents. Today, my guest is elder law attorney, Aaron Miller. He is the owner of Miller Law Office, a law firm dedicated to helping with elder care planning estate issues. And he’s here today to talk with us about things that we need to know when it comes to planning for the later years in life.
- What is an elder care attorney and how is it different from a regular estate planning attorney?
- When should I be thinking about hiring an elder care attorney?
- What options do people have available when it comes time for long-term care?
- In a case of a stroke that needs serious care, is that where a rehab center comes into place?
- How does one begin navigating through and selecting from these options?
- In your practice, who begins the conversations about aging and the choice of nursing homes, the adult or the children of the aging?
- Generally, is the aging parent resistant to having these conversations or are they willing to be a co-decision maker in the process?
- How do we pay for elderly care?
- What should we look for when shopping for long-term care insurance?
- What government benefits are available and how does one qualify for them?
- How do we know if a care home is a good quality place for our family?
- What do you experience when you’re working with families through the process?
- What message of hope do you have for people facing the decision to put mom or dad in a nursing home?
What is an elder law attorney and how is it different from a regular estate planning attorney?
This is a great question. Elder law and estate planning have a lot of overlaps. An estate planning attorney will help you figure out who gets your stuff after you pass away. They’ll do some similar documents to an elder law attorney.
An estate planning attorney answers the question, “What happens if you get sick and die?” but an elder law attorney answers the question, “What happens if you get sick but don’t die? What happens if you have to pay the high cost of long-term care? How are we going to handle that?” So it really helps figure out how we’re going to take care of mom when she gets sick.
Okay. That’s a really great way to phrase it. I love that.
When should I think about hiring an elder law attorney?
Probably when you’re thinking about retirement. You also want to think about how you’re going to protect your assets if you get sick. It’s like the saying, “What’s the best time to build an oak tree? 20 years ago. What’s the next best time? Today!”
It’s never too late to hire an elder care attorney. But key times are when you’re thinking about retirement; when you’re thinking about the assets you have and what you want to do with them, or thinking about what happens if you get sick and need care because that’s the biggest drain on people’s finances. As they get older, they just don’t realize it.
What long-term care options are available?
There are a lot of long-term care options available. Most people would rather age in place, and that can be great if you’ve planned for it. You need to make sure that you have your house all on one level, that you’ve got a ramp at the entrance into the house and the doors are wide enough for wheelchair access. That’s what most people would rather do.
There’s a relatively new option called a residential care home. That’s a home that provides assisted living care, meaning there will be someone there 24 hours, but if you drive by, it looks like a house. It’s in a community setting and doesn’t have an institutional feel. And you may or may not have a roommate, but really the advantage is that it feels like a house. It doesn’t feel like you’re in a nursing home per se.
And then you have assisted living care; that’s if you need help with a few activities of daily living, things like feeding yourself, bathing yourself, clothing yourself, moving around by yourself, and going to the bathroom by yourself, that kind of thing.
Then you have memory care, which is like assisted living but it’s more for if you have some issues, like Alzheimer’s, Dementia, or things like that. You have nursing home care. That’s not quite the highest, but it’s what most people need. It’s where you’ve got a nurse available 24 hours a day. They can give you medications and can do all that. And then there are actually one level higher and are called LTAC, Long-Term Acute Care. Basically, that’s hospital-level care for the long term. So if you’ve got an open wound or something that needs to be taken care of, you may need more hospital-level care, but you’re there for a while. So most people don’t have to worry about that, but that’s another level.
In the case of a stroke that needs serious care, is that where a rehab center comes in?
If you have a stroke, rehab would probably help with that, sure. A lot of times, those are going to be assisted living centers, so a kind of joint rehab, and sometimes they’re not. Sometimes they’re just stand-alone, and all they do is rehab.
How does one begin navigating through and selecting from these options?
It can be very confusing. Aging in place is great if you can get someone in to provide as much care as you need, a home healthcare agent. There are different options that you have. You can do your own research starting with the government-owned website showing different inspections that they’ve done.
You can actually do a search within a certain radius and certain ratings. The state of Texas actually has its inspections also. So that’s one way to do it.
Another way is recommendations from friends. And you can always go to visit the homes, which I highly recommend. Visit several and do it at different times of the day because they could be great today at 5 o’clock, but at 9 o’clock, maybe not so good. And there are also some people that can help as well. There are things like ‘A Place for Mom’ or a ‘Senior Source,’ things like that can help you find places to stay.
In your practice, who begins the conversations about aging and the choice of nursing homes, the adult or the children of the aging?
I’m curious about who has these conversations with you in your practice? Is it the person who will be living in the nursing home? Or is it the child or children who’s worried about mom or dad who start the discussion since the aging parents might not really want to talk about the subject?
I find that it’s usually the oldest adult female, either daughter or daughter-in-law, that handles it; that’s usually who’s shouldering the load. Unless the married couple is still alive and we’re dealing with dad, then it’s mom with that person helping out.
Generally, is the aging parent resistant to having these conversations or are they willing to be a co-decision maker in the process?
I’ve seen both. It just depends. I’ve had people who are ready to go because they know that that’s the next step. I mean, they obviously would love to stay at home, but sometimes we can’t do that. My mother had memory issues, and so she lived with my sister until she started to hit. We just couldn’t deal with that. My sister still has guilt issues because of that.
Apart from memory issues, another reason why someone may have to go to a home, even if they do not want to, is if they are at risk of falls, especially if we are talking about a larger gentleman whose wife will not be able to get him up again. In that case, a care home will be a much safer place to be. I’ve had people who got help with Medicaid benefits and just absolutely don’t want to stay in a care home, and they end up going home. Sometimes it works out, and sometimes they’re back in, so it just really depends.
So my takeaway as I’m listening to you is that the time to have the conversation is before you need it. I mean, start the conversations earlier, so you’re not in that crisis mode of having to make decisions when the person affected can’t really be a decision-maker of the process.
It’s always better to plan ahead and to think ahead, but it’s such a difficult conversation that it is easy to put off until you have to do something. Though by then, it’s still not too late to do things, we can protect a whole lot of money; we can have a lot more options if we’ve thought things through ahead of time.
How do we pay for elderly care?
There are three ways you can pay for care. You can do private pay, you can do long-term care insurance of some kind, or you can do government options. Private pay is great if you can afford it.
Here’s what happened with my family. When I was a kid, we were visiting my grandparents in Montrose, Colorado. A night before we had to leave, my grandmother had a heart attack in the middle of the night. She went to the hospital, and she was there for a while, and then she came home.
I don’t know if this was connected or it just happened, but she started having memory issues. She started putting her keys in the freezer, unscrewing the heating air return vent, putting her slippers down there, and hiding her purse behind books on the bookshelf. Over the next few years, it got so bad that, at one point, my grandfather couldn’t take care of her anymore. And so what he did was put her in a nursing home, where she spent the next 10 years of her life. But nobody talked to him about the different ways that he could pay for care. So he did the only thing he could do to take care of his wife. He went down every month and wrote a check, and that depleted all his money.
When she passed away, there was no money left over for when he needed care. He had to take in boarders, and eventually, we sold their family farm that they’d had for over 50, 60 years. And when he needed care, a few years later, we moved him out of Montrose, Colorado, and moved him closer to Arlington, where my uncle lived. Then my aunt, my uncle, and my dad all dipped into their savings to pay for their dad’s care. So private pay is great if you can do it, but you’ve got to think long term. How is that going to affect the surviving spouse? How’s that going to affect the other person? So that’s why I prefer long-term care insurance or, as a backup, government benefits.
What should we look for when shopping for long-term care insurance?
Let’s talk about long-term care insurance. What are the options? Like you, I have a story where my grandmother got long-term care insurance in the late 80s. I think when it was a new product, and it was fabulous. It helped her. I mean, she was in an assisted living home for about 15 years, and it gave her a lot of options. But I know that the window on that is really closing and there just aren’t as many options.
Long-term care insurance is great because then you’re using somebody else’s money to pay for care. And I don’t know the exact statistic, but I think it’s like one out of every two of us over the age of 65 are going to need some sort of care. Long-term care insurance is a great product, but because people typically have bought it and held onto it rather than changing policies, the insurers have more claims, and so they’re reluctant to do new policies. So it is more difficult. You could get it until you are about 82 or 83 years old. With COVID, it’s come down a little bit, but it’s still there.
There are different types of policies. You have traditional long-term care insurance where you pay either an annual premium or a monthly premium. And when you need care, you’ll go to the nursing home. Usually, they’ll have what they call an elimination period, so it’s a certain period of time, usually 90 days, where you’re going to have to private pay, and then it kicks in.
There are also some hybrid policies that are really interesting. And that’s where you might pay an annual fee, but you put a sum of money down for a whole life insurance policy or an annuity with a long-term care rider. And that’s why sometimes, the health factors are different between the two. So you might be able to get one and not the other. What I like about the newer policies is that if you don’t end up using the money, basically, it provides a beneficiary to an heir or something.
So, if you don’t end up using it, there’s still something?
Right. Traditional long-term care insurance is more of a use it or lose it unless you happen to have a rider. The new stuff is that if you don’t use it, you can pass it on to somebody else. So it’s not like throwing money in a trash bin.
What government benefits are available and how does one qualify for them?
There are a couple of benefits of long-term care. Actually, there are three. You have Medicare, which doesn’t really give you long-term care, but it can give you up to 100 days, and it’s normally for rehab. So if you broke a hip, you get to stay in a hospital for a period of time, then go to a rehab facility. They’ll pay up to a hundred days, not guaranteed. And there’ll be a co-pay after the 20th day, but that’s one benefit. The next benefit is a VA benefit. And then there’s Medicaid.
So VA benefit is for a veteran who has served 90 days, one day during a time of war. They have to have certain income and asset qualifications as well. And it could be for their surviving spouse. If the veteran has passed, the surviving spouse could also get some benefits. Not as great, but it’s still available. And then finally, we have Medicaid, and that’s how the middle class pays for care. A lot of people think Medicaid’s really just for people who don’t have anything, and that’s not really true. You can actually have quite a bit of money, and as long as it is in the right slots, the right buckets, you can still get qualified for Medicaid.
Okay. And so, in elder law planning, is that what you’re doing, helping people make sure they have their assets in the right buckets?
Yes. Exactly. We take a look at their assets and figure out how we can move them around to make them non-accountable assets if they need long-term care. How to protect that money so that the money is there for them if they need it; if there’s any leftover, we can give our children a legacy.
How do we know if a care home is a good quality place for our family?
It’s hard. You have to look at reviews and look at the government websites I mentioned earlier; we can put a link to those in the show notes.
Look at how people are being treated in a care home. I tell people it’s not whether or not a nursing home takes Medicaid. That’s not the factor in whether it’s a good nursing home or a bad nursing home. Number one is going to be the administration. How are they handling the nursing home? But it really comes down to the people doing the hands-on care. Those are the ones that are making sure that your loved one is taken care of; they’re the ones that are feeding them. They’re the ones that are changing out their bandages or changing out their adult diapers and things like that. Those are the ones that you want to make sure are really good. And what I found is, unfortunately, they’re not paid very much.
So a lot of times, you could have great care today, but six months from now, when you’ve had a turnover, it may not be quite so good so you really need to be vigilant. What I found is that it’s the family members that show up a lot, that ask questions, that talk to the staff, basically it’s the squeaky wheel that gets the grease, those are the ones whose family members get the best care.
Okay. I think that’s really important. Even if we found the best care today, we can’t just rest on our laurels, and we still need to be an advocate for our loved ones in the process.
What do families experience through the process of putting a parent into a care home?
There are a lot of emotions. It’s hard because these are our parents that we’re taking care of. These are the ones that have always taken care of us, and now it’s fallen on us to take care of them. Sometimes there can be guilt. “I’m putting her in a home. She doesn’t want to be in a home, but I can’t take care of her,” for whatever reason. And there’s a lot of shame around that too. But there’s a lot of, “This is the best thing for her. I know that, and we’re doing what we have to do.” So it’s a tough decision. I know when my grandfather put my grandmother in the nursing home, that was the hardest day in his life because I hear that from clients all the time.
And so to be really proactive from the get-go means you’re going to have the best options available?
Absolutely. You want to talk with an elder law attorney. You really want to make sure you have your power of attorney in place, that’s a document that aids with how to handle finances and have your medical power of attorney. Ideally, an elder law attorney will show you what to do if you need to protect assets because sometimes assets are protected without having to do anything. So you just really want to have a plan, and earlier is always better.
And so people can get in touch with you. If you have a loved one over the age of 65 or you are approaching the age of 65, it’s probably a good idea to come in and meet with Aaron sooner rather than later.
What message of hope do you have for people facing the decision to put mom or dad in a nursing home?
I think the message of hope is that you’re not alone. Obviously, it’s an individual decision, but it is far from an easy one to make. You have to make the best decision for your loved one, your family, and yourself. Sometimes, that means you take them home and care for them at home. And sometimes that means you have to put them in a place where someone will give them better care. And you just have to be at peace with that.
If you want to learn more information about Aaron and his law firm and the steps you can take today to help protect your loved one or your own future in a nursing home or any other type of assisted care, please reach out and contact him. In the meantime, here are links to the resources he mentioned during our chat, and a bonus link to his new guide: Nursing Home Medicaid Simplified.