Elder Law is another aspect of estate planning, focusing primarily on the unique legal issues facing adults as they age, including Medicaid and long-term care, whether at home or in a nursing facility, guardianship, asset protection, and housing issues.
New York Medicaid Planning
Medicaid planning involves making arrangements for an individual to preserve their assets while ensuring they are for eligible for Medicaid, which can be used to cover the cost of long term care.
Medicaid is a joint federal-state program subject to certain federal requirements. Each state implements its own regulations on how the program is managed, and we have extensive experience in helping clients with Medicaid planning and applications in Nassau County, Suffolk County, and New York City.
Medicaid eligibility is means-tested, meaning the person must have a certain level of assets to qualify for coverage of long-term care costs. In New York State in 2025, a single person may have up to $ 31,175 in countable assets to be eligible. In most states, this number is closer to $2,000. When applying for Medicaid, you’ll need to provide information on checking and savings accounts, investments, insurance policies, deeds to burial plots and other financial documents.
Homeowners should speak with an experienced Elder Law attorney as soon as possible regarding protecting the home when one of the spouses needs to apply for Medicaid. They will be able to guide you through the many nuances involved in qualifying for Medicaid.
In New York State, there is Institutional Medicaid and Community Medicaid. Institutional Medicaid is for people who are too ill or incapacitated to remain at home and must live in a nursing facility. Community Medicaid pays for care for recipients who are able to live either in their own homes or in an assisted living community. Services are for the Activities of Daily Living (ADL), including eating, dressing, toileting, bathing and transferring, which refers to mobility.
An example of the challenges facing the Medicaid applicant can be seen in the New York Codes, Rules and Regulations page. A complex series of rules are applied, and this is just one page of what needs to be navigated to determine eligibility. An Elder Law attorney should be consulted to assist with eligibility and application.
We assist seniors and their families in making the tough decisions regarding long-term care planning, including whether Medicaid eligibility is an option. The cost of care is always a shock, and the Asset protection planning should be done long before someone needs to apply for Medicaid, but when this is not possible, there are a number of alternative options.
Crisis Planning for Medicaid
Crisis planning typically occurs after an illness or injury requires a person to be hospitalized and then admitted to a nursing care facility or rehabilitation center. If their condition requires them to remain in the facility for an extended period of time, the family’s resources will be depleted rapidly and, in most cases, an application for Medicaid will need to be prepared and submitted.
If a Medicare Asset Protection Trust has been put into place in a timely manner, the family will already have a plan and assets will have been safeguarded.
When faced with a Medicaid crisis, a meeting with an experienced Elder Law attorney should take place immediately to navigate three key issues:
- Application for Medicaid for institutional or community care
- Protection of the well-spouse so they are not impoverished.
- Protect a lifetime of work and savings.
If no prior planning has taken place, there are a number of tools that an experienced Elder Law attorney can use to protect assets at the time of need, but it will be critical for a consultation to take place as soon as possible.
Guardianship in New York
When an individual is showing signs of diminished mental or physical capacity and no planning has been done, it may be necessary to obtain a guardianship so another person can take over the legal and financial matters.
A Guardianship Proceeding begins with the filing of a Petition and an Order to Show Cause to be signed by a Judge. After the Order to Show Cause is signed, it needs to be served on the Alleged Incapacitated Person (the legal name for the person you are seeking Guardianship of) and other immediate family members. The Court will also appoint a Court Evaluator and often an Attorney for the Alleged Incapacitated Person to investigate the situation for the court and to protect the interests of the Alleged Incapacitated Person.
To succeed in a Guardianship proceeding, you must prove that the Alleged Incapacitated Person is suffering from medical issues which put their health or property at risk. In some situations, this is clear and easily apparent. If there are any objections from the Alleged Incapacitated Person or other family members, you will need evidence in the form of either witnesses who can attest to the medical problems or documents that show the assets are at risk.
The Guardianship is then determined at a hearing, at which the Petitioner must put on their case and the Alleged Incapacitated Person has the right to attend and speak. If you are successful at the hearing, you (or the person you chose) are appointed Guardian. As Guardian, you are responsible for the person’s finances and medical care. You are often required to be bonded for the assets of the person and are required to report your actions on their behalf on an annual basis.
It is far easier and less costly to execute Advance Directives, including Power of Attorney and Medical Power of Attorney, Living Will, and a HIPAA Release Form when an individual has the capacity to do so.
Elder Housing Issues
Moving to senior housing can be overwhelming. The death of a spouse, declining health or safety concerns can trigger the need to move. The first phase comes with the realization that what has been home is no longer suitable. Emotional ties to a place are hard to overcome. Finding a new home that is appealing and appropriate is no easy task, nor is moving a lifetime of possessions.
Here are some tips to help make the housing transition easier:
- Plan ahead. Don’t wait for a health crisis to start the process. The smoothest transitions occur when the person moving is in the driver’s seat.
- Get a full assessment of the current situation. Physical care needs and financial resources are where to start. Consider the costs of staying in place, including renovation and ongoing maintenance. Add the cost of rising utility bills and taxes, and don’t forget transportation and food. Make a list and decide whether it’s cheaper to stay or move to a community designed for seniors.
- Take a multi-phase approach. Seniors often take longer than a year to actually make the move.
- Fully explore new housing options. Senior living offers a broader range of options than ever before.
How Can Our Elder Law Practice Help You and Your Family?
We help families planning for the future as well as those in the midst of a health care crisis. We can help whether you live in New York State or Florida if you’re a snowbird and live in both states. If you have questions about Elder Law issues, please call the office to make an appointment to speak with an attorney.