A lot of people are reluctant to consult attorneys on legally-related matters due primarily to the cost.  This is doubly true with respect to issues related to Medicaid coverage of nursing home care for the following reasons:

• The cost of consulting with an attorney.
• MassHealth eligibility is seen as a non-legal matter that should be straightforward and not require legal assistance.
• Nursing homes often offer to prepare MassHealth applications for residents for no charge at all.
• Discomfort with using a public benefits program.

Let’s discuss each obstacle to legal representation in turn.

Cost

There’s no getting around it.  Lawyers are expensive.  But the bottom line — since that’s what we’re talking about here — is that they’re a lot less expensive than nursing homes.  In Massachusetts, nursing homes generally charge $13,000 or more a month.  Unless your situation is very complicated, the legal fees will not approach this figure.  If the consultation with the lawyer saves even a month of nursing home fees the legal costs will be more than justified.  At stake can be a lifetime of hard work and saving.

MassHealth as Law

Certainly, public benefits should be available to those who qualify without having to resort to hiring an attorney.  Unfortunately, this aspiration and the reality of the MassHealth rules are far apart.  The eligibility requirements are defined in a conflicting set of state and federal laws, regulations, bulletins and practices that make it impossible even for attorneys to fathom unless they specialize in the field.  Your case may be simple and may not require the depth of knowledge needed to plan for a more complicated estate.  But you can’t be sure of that without first meeting with a specialist.  Again, a lot’s at stake and given the cost of nursing homes, it’s not difficult for a qualified attorney to save the client more than the attorney’s fee.

Free Application Services

Yes, the nursing home provides application assistance at no charge.  And in the majority of cases there’s no risk in using these services if you’ve checked it out with an attorney ahead of time.  But there’s a great risk to using the nursing home’s services without first consulting an elder law attorney.  We have seen countless examples of incomplete or improper advice leading to significant lost planning opportunities for our clients, no matter how well-intentioned the advice giver may be.  Rectifying the situation may cost more in legal fees than would have been the case with a proper plan.  In any event, the nursing home and the resident’s family often have conflicting interests since their private-pay rates are typically several thousand more a month more than they receive in MassHealth reimbursement.  In other words, every month that a resident pays privately rather than receives MassHealth coverage is additional money going to the nursing home and less preserved for the resident’s spouse and family.

In addition, to the extent the application raises legal issues; it makes sense to have an elder law attorney prepare the application.  This would be the case, for instance, if a trust were involved or if you were seeking an exception to the usual penalties for transferring assets.

MassHealth as Welfare

MassHealth, formerly known as “Medicaid” serves a number of different populations, including poor recipients of Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TAFN).  No one would argue that when Medicaid was created that it was meant to be the main system of paying for long-term care for older Americans.  But in the absence of any other program to fill that need, Medicaid has become the nation’s long-term care financing system by default.  Medicaid planning permits nursing home residents to be covered by the program under its rules.  Congress can change the rules, and often does.  Consulting with an attorney permits seniors and their families to understand the rules as they are and the options available to them. It does not require them to take any particular steps.  It can be vital to preserving the financial security of a healthy spouse continuing to live at home.

Conclusion

Don’t short change yourself and your family when facing the potentially catastrophic cost of long-term nursing home care.  Seek the advice of an attorney who truly specializes in elder law.  The resulting financial savings and emotional assurance an individually tailored asset protection plan provides is well worth a reasonable legal fee.

Sincerely,

Eric R. Oalican