Frequently Asked Questions

A. Yes. We are adding information as rapidly as possible to create a free resource that helps you understand Elder Law, Special Needs Law and caregiver issues. Does this mean you won’t need an attorney? Absolutely not! WE cannot give you three years of law school and years of practical experience on web pages. But we will help you with one huge issue. “You don’t know what you don’t know,” which means you may not even know which questions to ask. Our hope is that we will give you enough information to know help is out there and to ask the right questions as you seek help. If you have a question we haven’t answered yet, email us at ezelderlaw@gmail.com.

A. Long-term care is “extra help” getting through the day. It involves a variety of services designed to meet a person’s health or personal care needs during a short or long period of time. Long-term care is not considered “health care” so it is not covered by most health insurance policies or by Medicare. Often, long-term care is described as assistance with activities of daily living (ADLs), which are: feeding oneself, toileting, grooming, dressing, continence care, bathing, and ambulation (such as moving from bed to wheelchair).

A: Medicare and Medicaid are government-sponsored programs that reimburse heath care providers when they provide covered goods or services. Medicare is a federal entitlement program for the disabled and people aged 65 or over. Medicaid is a federal-state welfare program for low-income and low-asset families with children as well as the needy, aged, blind and disabled.

A. No. There is no rule requiring you to go to a nursing home, and your children are not required to admit you to a nursing home. There are rules that prohibit abuse or neglect, but as long as your needs are being met, you can get care anywhere. The real issue is whether it’s smart to stay home. If you insist on your child taking care of you at home, and if your child agrees, then you are placing your child at risk of injury, lost income, lost time with his or her spouse, lost time with his or her own children, and you have probably diminished your relationship with him or her because now he or she is spending time as your servant instead of holding your hand, talking with you, enjoying your company and loving you. If you are a child trying to keep your parent home, you have all of these risks including the additional risk that your parent won’t get the right care because you are burned out or because you don’t have enough knowledge provide the right help. The real issue is whether staying home is a healthy situation for you and your caregiver. Even if it works for now, that decision needs to be reviewed regularly.

A. It depends on how much care you need and where you get care. Genworth publishes an annual survey of long-term care costs, and the published average in Georgia in 2020 was about $6,722 for a semi-private room, or $80664 per year. The actual cost as of April 2021 is about $10,000 per month. The average length of stay in a nursing home is 2.4 years, so the total cost of an average stay would be between $190,000 and $240,000 for a semi-private room. Assisted living care averages between $40,000 and $50,000 per year. Homemaker and home health services average between $38,000 and $46,000 per year.

A. In general terms, there are four ways to pay. Medicare will pay for a maximum of 100 days in the nursing home (but only the first 20 at 100%) if you have a qualifying hospital stay. After that, Medicare stops paying. Medicare does not pay for assisted living care and only pays for approved home health care if you need skilled therapy. If you have long-term care insurance, it will pay for those goods and services covered in your insurance agreement. Of course, you can use your own money to private pay. The last way most people pay is by qualifying for Medicaid. If you are a veteran, then you have a fifth option, which is Aid & Attendance.

A: Probably not. Medicaid’s Transfer of Resources rule will, in most cases, result in a penalty if you give away your assets for less than fair market value within 60 months before applying for Medicaid benefits. A related question many people forget to ask is “what if I don’t get sick.” Can you give away your assets and then get them back? Once you have given away your assets, they do not belong to you any more. Not only do you lose your legal right to get them back, but your children’s creditors might acquire rights in your assets. There are many risks out there, so giving your property to your children doesn’t protect it. What if your children get divorced, lose their jobs and spend your money, go bankrupt, get sued. etc.? An Elder Law Attorney can help you evaluate your options.

A. No. Federal statutes and regulations prohibit nursing homes from discriminating against residents based on the source of payment. See 42 C.F.R. § 483.15(b)(1).

A. Stop there. If you got your information from anyone other than an Elder Law Attorney, it’s probably wrong. Myths and rumors abound regarding Medicaid and 99.9% the information you received from the neighbor lady across the street is wrong. If you got your information from a shady non-attorney who’s attempting to “help you” at a discount fee by practicing law without a license, the information is probably wrong. And information from an attorney who does not practice Elder Law may be wrong (unless he or she reviewed EZ Elder Law before answering). One reason it’s wrong is because the rules change. Another is because non-lawyers don’t understand that it’s not just the Medicaid rules: you also have to understand, among other things, property law, contract law, probate law, tax law and administrative procedure. Recently, a nursing home employee told someone we know that a sick spouse could not qualify for Medicaid because the healthy spouse’s income was too high. Wrong. An attorney who is not an elder law attorney told someone to give away money and apply for Medicaid without telling Medicaid. Wrong (unless you want to go to jail for Medicaid fraud). Someone we know was told they could not get Medicaid because they had a term life insurance policy with no cash value. While it might present other challenges, that answer was also wrong. This is just a sample of the incorrect information floating in the community. If you want answers to legal questions, ask an attorney. If you want to know about Elder Law or Special Needs Law, ask a Certified Elder Law Attorney.

Medicaid Myths

10 Myths About Medicaid

A. It’s never too early to start planning. Likewise, it’s never too late to plan. If you come to the dance late, a qualified Elder Law Attorney can still help you, but you’ve limited his or her options. Keep in mind that time is one of the tools Elder Law Attorneys use. Think about your goals and give yourself enough time to achieve them.

A. It depends on what you want to accomplish. The answer is that every plan is different so it takes as much as your plan requires.

A. Yes. Most Elder Law Attorneys who’ve been practicing for a while have contacts in the community. You can also use the “nursing home compare’ tool at medicare.gov.

A: Eligibility for Medicare is linked to eligibility for Social Security; both programs look to see whether you worked enough quarter hours and paid into the system. Assuming you did, if you are age 65 or older, have been disabled for at least two years or have chronic kidney disease, you are probably eligible to receive Medicare benefits. Medicaid is different. Medicaid is a welfare program that pays for covered health services. Generally, Medicaid beneficiaries must be over 65, blind or disabled, and must also have low income and low assets. Although it is a federal-state program, the Medicaid program is administered on a state-by-state basis, so the eligibility rules are different in each state.

A: No, but there’s a caveat to that statement. If you transfer assets (which could be income or resources), a transfer of resources might apply, or there may be adverse tax consequences, such as a loss of a step-up in basis.

A. Yes. There is no rule against spending your money. In fact, there is no rule against spending your money unwisely. You could, for example, go to a casino and gamble your money away (as long as you do the gambling yourself) and still get Medicaid. The problem, though, is once it’s spent you have nothing left but Medicaid. Our suggestion is that you contact us and let us help you develop a plan that achieves your goals and gets you the best care possible.

A: Long-term care insurance is a private insurance policy purchased to cover long-term care needs, such as home care provided by a paid caretaker, assisted living facilities or nursing homes. While often times quite expensive, long-term care insurance can save a substantial amount of money when compared to the rising costs of long-term care. To determine if long-term care insurance will benefit you, you should speak to an experienced elder law attorney. EZ Elder Law is owned by David L. McGuffey, who has a life and health insurance license in Georgia. If you live in Georgia and you would like a quote on long-term care insurance, he can get you one. If you do not live in Georgia, he can refer you to a licensed insurance agent in your State.

A: No. A power of attorney allows an appointed agent to act for you in the manner you designate in the power of attorney document. If you permit it, the agent could withdraw money from your bank account or write checks from your bank account. However, you could limit the agent’s authority to specific tasks, or you could provide that certain tasks are not allowed. Nothing in a power of attorney deprives you of your rights because you are still in charge as long as you have legal capacity. If you don’t like your agent, then fire them by revoking the power of attorney.

A: Georgia no longer uses a “living will” or a “health care power of attorney.” The law changed in 2007, when those documents were combined into what we now call an advance directive for health care. The old documents are still legal if you have them, but they are not the right form if you are preparing new documents. Essentially the old “living will” stated your end-of-life preferences if you had a terminal condition or if you were in a persistent vegetative state, and the old “health care power of attorney” designated a health surrogate to speak for you if you were unable to communicate with your health care providers. The new advance directive for health care still covers those bases, but it goes farther. It also allows you to designate who will take charge of your body after you die, whether you prefer burial or cremation, and who would be your guardian if a guardianship petition is filed. Everyone should have a health care advance directive. Remember, Terri Schiavo fell into a coma when she was 27.

A: Yes. Powers of attorney or health care directives can be changed at any time as long as you still have legal capacity.

A: Depending on the state, guardians and conservators may have different roles. In Georgia, a guardian is the person who makes personal decisions for someone (e.g., housing decisions and medical decisions), while a conservator manages money and property. In Tennessee, the terms are used differently, but the job is the same. In Tennessee, a guardian makes decisions for a minor, while a conservator makes decisions for an adult.

A: No. You should never rely on a web page for your legal advice. This page addresses a few frequently asked questions, but it is impossible to evaluate your specific circumstances here. Unfortunate and costly mistakes can be made if you do not know what you are doing.

A: Yes. You could try to be your own lawyer (or even worse, take advice from a non-lawyer), but if you make a mistake or overlook a strategy that results in your having to pay more to the nursing home than you should have, then you are worse off. You could have used some of that money to pay an attorney and have it done right the first time. Remember: professional help is expensive, but mistakes cost more. You should also remember that it generally costs more to fix your mistakes than you would have paid to have planning done right the first time.

A. There is nothing wrong with hiring a non-lawyer to do non-lawyer work. For example, insurance agents sell insurance and accountants do accounting. But should you rely on a non-lawyer for your legal work? Abraham Lincoln said “He who represents himself has a fool for a client.” You have not improved your position if you ask a blind person to lead the blind.

Don’t be penny-wise and pound foolish. You get what you pay for, so thinking that you found “a deal” using a non-lawyer for legal work is misguided. Non-lawyers can actually make your situation worse by pretending they know what they’re doing. Non-lawyers did not spend time in law school learning property law, contract law, tort law, probate law, administrative law, or the host of other issues lawyers are trained to address. They have not been trained to pull together the various laws to develop a cohesive plan. They were not “tested” by passing a bar exam. They cannot (legally) appear in court to defend anything they do. They do not attend Continuing Legal Education to stay current on the law, and have no experience reading the law. They have no professional liability insurance if they hurt you. They have no experience practicing law, so they are “practicing” (illegally) on you. There was a news story several years ago about a so-called eye surgeon who “practiced” his technique on oranges before attempting surgery. Things didn’t turn out well and his patients were blinded. That could be you if you ask a non-lawyer to serve as your advocate.