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The New Elder Law: Stay-At-Home Planning

By Harry S. Margolis

When I began practicing elder law more than 25 years ago, most of what we did was help people facing nursing home care qualify for Medicaid (now MassHealth in Massachusetts). There was little or no home care, assisted living facilities were few and far between, and most long-term care insurance policies were as full of holes as Swiss cheese.

Fortunately, this picture has changed in many ways:

  • Fewer seniors are moving to nursing homes, and when they do go it’s usually for much shorter stays. According to the U.S. Census Bureau, the percentage of Americans over age 65 living in nursing homes has dropped from 5.1% in 1990 to 3.1% in 2010.

  • Most of the fly-by-night insurance companies that had offered long-term care policies have fallen by the wayside, and the coverage now available is much more secure and comprehensive than in the past. As a result, it’s also more expensive.

  • Today, a plethora of living and care options are available to seniors, including assisted living, continuing care retirement communities, dementia units in assisted living, and home care services.

  • MassHealth has greatly expanded its coverage of care at home and under some programs will even pay family members to provide care.

That’s the good news. The bad news is that with these expanded options comes much greater complication:

  • In terms of long-term care insurance, which policy should you purchase? For how much coverage a day and for how many years of care? What can you afford?

  • Which of the many assisted living or continuing care communities should you choose? What will happen when its care is inadequate or you run through your savings?

  • Which home care agency should you engage when the time comes?

  • How much help can you get from MassHealth? This is especially complicated because there are half a dozen different MassHealth programs helping to pay for care at home or in assisted living facilities. Which one makes the most sense for a particular senior requiring assistance depends on his or her financial status, the level and type of care needed, the services available in the community in which he or she lives, and whether there’s someone available in the house to supervise care.

As a result of these changes, the job of an elder law attorney today is both more satisfying and more challenging than it was a couple of decades ago. We are no longer just working with families to protect against the cost of a single undesirable event — the need for nursing home care. Instead, we must plan for many possible outcomes. And a large part of our planning today is to help seniors stay at home rather than move to a nursing home. This means using the wide array of services available to stretch seniors’ savings so that they can afford to hire the care they need for as long as possible.

In short, over the last quarter century, elder law has moved from largely consisting of nursing home planning to being focused on stay-at-home planning.

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