Elder Law, An Overview
Dennis Dee, Attorney at Law
Elder law, in its embryonic state, was originally seeded with the introduction of Medicare, conceived to protect the ?elderly? or those of us who managed to survive past the 65-year marker; and, this was followed by the Federal Government?s passage of the Medicaid bill, enacted to accommodate the growing number of these elderly individuals who found themselves in need of long term care, when family home-care was no longer available.
That all began back in 1965, and it was not until several decades later that attorneys, who had absorbed the task of estate planning for the elderly client, were served with notice that some of the heretofore legitimate tactics developed by attorneys to protect and safeguard against asset depletion were no longer permitted under the laws of New York State Law, where the courts initially caved-in to the complaints of various departments of social services that such efforts to avoid self- pay by the elderly were against public policy.
As a result, where windows once existed for asset protection, they now served as an ejection point for such devices as ?Medicaid Trusts,? which allowed for discretion in the trustee to pay out income and/or invade principal of the trust for an individual, provided such individual was not otherwise eligible for governmental benefits (in particular Medicaid). When the din and the roar of protest ensued, there was eventually introduced the ?look-back? period, which provided its own window frame with regard to permitted transfers (to be further distinguished from ?permissible?).
Since that time, the estate planner realized that there was a clear distinction to be made among clients, separating the ?elderly? from the others, simply because there had developed issues unique to those within that age category. Moreover, as time passed, the Elder Law attorney began to realize that he/she was not on any roller coaster ride. There were no real ascents and descents; only a consistently rapid decline, with the loss of protections against transfers lost in the wake of acceleration over the resistance of gravity.
Nevertheless, the estate planner, now assuming the identity of the ?Estate and Medicaid planner, ? slowly began to realize that the greater percentage of his time and commitment was to asset protection, where at one point in time the primary objective appeared to be committed to avoiding or minimizing estate taxes. With the changes in the federal gift and estate tax regulations, and conforming legislation of New York State, this became less and less of a concern. At the same time, however, the wiliness of the Medicaid planner alternately combusted the tax issue, such that operating budgets at all governmental levels had to be reviewed and, ultimately, increased, in order to finance the grueling burden of providing Medical Assistance to the elderly who could no longer afford institutionalized health care through private pay.
Down through the years the ?look-back? period has increased, as has the scrutiny by the county Department of Social Services/Nursing Home Division, and its examiners.
Now, in the new era of Medicaid planning, beginning with the Deficit Reduction Act (DRA) the federal government has attempted to block out aid which was otherwise made available to them, thereby putting Medicaid less and less on the level of Medicare, which did not distinguish between the resource-income levels of the individual. The key element of the DRA is its effectively changing the date to be utilized in the calculation of the penalty or ?look-back? period for those transfers made by the MA applicant for less than full consideration, declaring it to be the date said person enters the nursing home facility and either applies for Medicaid or who becomes eligible ?(?)? for Medical Assistance. This is even more commandeering and prohibitive than increasing the ?look-back? period from three years to five years.
There are a number of outstanding issues at state-levels, in addition to those reportedly extant at the federal level, where there is some discussion and argument regarding the actual bill signed by President George W. Bush. This is followed by questions in New York State concerning the Governor?s veto and the legislature?s override, as it impacts upon the conformity legislation requirement, as well as such issues relating to an attempt to eliminate spousal refusal and other major options available to the Elder Law Attorney.
The bottom line, and what confronts the elder law attorney today, is essentially a need to reconcile an acknowledged obligation on the part of federal and state governments to assist the elderly who are in need of long term care without imposing the self-deprecating need to first impoverish themselves, with appropriate government participation via regulations which fairly allocate its revenue, either through taxation or direct contribution from individuals who directly benefit from governmental spending, without undue restraint against alienation which interferes with an individual?s right to plan for and dispose of his/her property as befitting of a free society whose own mantra is the protection of citizens? right to life, liberty, and the pursuit of happiness. Whether or not Medicaid should be revised so as to be more in alignment with Medicare certainly is one approach. At the same time, there is a genuine question and real concern among U.S. Nationals that socialized medicine, as in effect in our neighboring country and partner, Canada, should be avoided at all costs. At the same time, however, there is apparent accord among the same general element of society that such concept, or precept, can and should be made applicable for our elderly who may have successfully established eligibility for Medical Assistance. Is that not the end result of the institutionalized person on Medicaid, for all practical purposes?
Somewhere in between lies some answer, not necessarily resolution, to the existing dilemma which even today pits the Elder Law attorney against a certain faction of attorneys who continue to believe that Medicaid planning and asset protection are an abuse of the system, as they would so perceive it. These are the same people who would deny entitlements to those individuals who have given unselfishly of their own selves, to our community, to our government, and to our way of life, for their entire lives. The Elder Law Attorney is and ought to be committed to protect those rights and to advance the interest of those individuals, with but one caveat, and one that is most elusive, yet critical: Always be aware of, and never lose sight of, the identity of your client, the elderly person, himself/herself. It is not the children, not the ?significant other,? and not even the spouse. And, this can only be effectively undertaken after obtaining for oneself a true understanding of the elderly, beginning with an understanding and appreciation of the aging process, while, at he same time, assuming an elderly client?s perspective; and, lastly, always respecting a client?s autonomy.
This will never qualify or authorize you to declare yourself to be an Elder Law expert or specialist; it will, however, grant you the right and prerogative to advertise yourself as one who concentrates in the area of Elder Law, and that, itself, distinguishes or separates you from the general practitioner or attorneys of dissimilar concentration. Only then will true advocacy blend with dignity and self-esteem of the client to ensure the client of his/her entitlements under law and the law?s own fulfillment of its own role.