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Why Should I Use An Elder Law Attorney for Medicaid Planning or Application?

Posted by Megan Delaney Rogers | Apr 25, 2024 | 0 Comments

Why Should I Use An Elder Law Attorney for Medicaid Planning or Application?

Most seniors and their families do not use an attorney for Medicaid planning or the application, potentially costing themselves thousands of dollars in lost assets, lost time, and bad decisions.  Often the reason is because there is an upfront cost and some are afraid of the cost.  However, an attorney practicing in the elder law and Medicaid areas can ultimately save the client thousands (or hundreds of thousands) of dollars in the longer term, along with helping the client to qualify for Medicaid faster and protecting thousands of dollars of assets from being “spent down.” 

Making these important decisions based on information heard from others, doing nothing, or engaging a non-lawyer (especially one referred by a nursing home) can cost thousands of dollars in loss of assets, unnecessary and outrageous fees, penalties, and lost time.  Here are a few reasons to consider using an attorney:

Saving Money

Nursing homes can cost more than $10,000 a month in some areas.  It is highly unusual for legal fees to equal the cost of even two months in the facility – generally much less.  It is not difficult to save that much in long term care and probate costs.  Most elder law attorneys will consult with new clients for a small fee to determine what may be achieved before the client pays a larger fee.  There are numerous strategies that can be employed to shelter assets, save money, create exempt property, protect non-institutionalized spouse and dependents, and shorten the time until Medicaid eligible without divesting all but the minimum allowable assets.

Knowledge and Experience

Professionals become skilled in any field over a period of time – usually many years – and develop both the depth and breadth of experience and expertise to advise clients on how to achieve their goals.  In Medicaid planning, the most common goals are maintaining independence and dignity, preserving funds and assets for a spouse, children or grandchildren, or aging in place rather than moving to assisted living or a nursing home.  Non-elder lawyers or non-lawyers, however well-intentioned, cannot know what they do not know and can potentially cause more problems that can ultimately cost tens of thousands of dollars to the client. 

Conflict of Interest

When nursing homes and assisted living facilities refer the families of residents to non-lawyers to assist in preparing the Medicaid application, the preparer has dual loyalties – to the facility that provides the referrals that pay their bills and their salaries and to the client applying for the benefits.  To the extent that everyone wants the Medicaid application to be successful, there is no conflict of interest.  But, it is in the facility's interest that the resident pay privately for as long as possible before receiving Medicaid, spending down their assets until they are essentially impoverished.  The attorney's job, on the other hand, often is to save as much of the client's assets as possible but get them qualified for Medicaid at the earliest possible time. The attorney's only interest is to serve the client's interests – which are usually to preserve as much of the assets as possible.

Avoiding the Avoidable

Often people hear bits and pieces of stories from others that are almost always taken out of context.  The only way to truly know what steps to take is to ask an experienced attorney.  Missteps often cost families tens or hundreds of thousands of dollars. A common misstep is to sell the home of the applicant.  In Texas, the home is usually exempt – but the proceeds from the sale of the home are not. So, selling the home prior to applying for Medicaid is a huge mistake that is easily avoided.  However, even if that mistake has been made, an experienced attorney can assist by strategically purchasing other assets that may be exempt from Medicaid.

Peace of Mind

Sometimes there is not much that can be done to preserve assets or achieve Medicaid eligibility more quickly.  But without a consultation, the client cannot know for certain.  Simply having a consultation with an experienced attorney will provide peace of mind that an important opportunity has not been missed.  Additionally, if obstacles arise during the process, the attorney will be there with the client to find the optimal solution.  Medicaid rules in Texas provide lots of opportunities for recipients to preserve their assets for themselves and their families.  The most opportunities are for clients who plan ahead, but there are still plenty of opportunities available at the last minute to preserve assets or achieve eligibility.  It is always worth asking the questions and taking a look.  At Rogers Law, we would love to help you gain peace of mind.

About the Author

Megan Delaney Rogers

Megan Delaney Rogers, a native of Southern Louisiana and proud graduate of Louisiana State University,  graduated cum laude from St. Mary's School of Law, San Antonio, Texas. Since becoming licensed in 2003, she has been a solo practitioner with a general law practice in the Kyle area since 2003....


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