Elder Law/Long-Term Care Planning
Elder Law is a part of the law that encompasses a variety of practice areas. Elder Law refers to any and all types of law that affect our elderly population, the fastest growing segment of the Maine population.
We assist clients with the following Elder Law issues:
- Power of Attorney
- Advanced Health Care Directive/Living Will
- Protecting and Preserving Assets/Medicaid Issues
- Family Disputes concerning the care of an elderly loved one
- Maine Care and Deed Transfer Options
A Guardianship/Conservatorship involves the act of applying to the Probate Court for custody and control of either a minor or adult who cannot take care of their self.
Guardianship/Conservatorship of a Minor: This procedure would apply in the case where a non-parent (grandparent, relative) feels that the legal parent of the minor can no longer provide care of the minor, placing the child in an intolerable living condition.
Guardianship/Conservatorship of an Adult: This procedure would apply in the case where an interested person (child, sibling, parent) is concerned that their loved one, over the age of eighteen years old, cannot care for themselves. This could be for reasons of mental illness, dementia or infirmity. In most cases, a well-drafted Durable Power of Attorney, executed by the loved one before they become incapacitated, will eliminate the need for the Guardianship process. However, in certain cases, the Guardianship/Conservatorship process is unavoidable. At Ballou & Bedell we can help navigate families through these difficult decisions. Contact us for more information.
Maine Care & Deed Transfer Options
Many people think they are going to lose their home to the nursing home if they requre long-term care. It doesn’t actually work that way.
In the State of Maine, if you need nursing home care and cannot afford it the State will pay for your care if you have approximately $10,000 in assets (approximately $130,000 for a couple). This includes all your assets, even assets in a Revocable Trust or IRA. If you own your house it is exempt (up to approximately $850,000 in equity). If you have more than this, the State will not pay for the costs of your long-term care until your assets reach these levels. You will have to pay for these costs on your own. Once you have spent down all your assets to the appropriate levels, the State will pay for your costs of care. In order to qualify for Maine Care, the State will carefully audit your finances for a five-year period. If you have any transfers (i.e., gifts to children) during this five-year “look back” period, they will “penalize” you by adding that gift back to your asset tally. They will “claw back” all gifts during this time including a $500 check to a child or the value of a house if the house was given away. After the five-year period, these transfers are considered out of reach. However, if you go to the nursing home, incur a bill and then die, the State is able to attach a lien to your estate, which could include your home. They are keeping track of every penny they spend on you and when you accept money from the State to pay for your nursing home care you agree to pay them back!
The nursing home won’t take title to your home while you are alive. However, when you die the State will place a lien on your estate and your heirs (i.e., children) will have to pay off that lien (up to the value of your estate). Because you would not be eligible for Maine Care unless you only had your home as an asset, this lien is often paid at the time of the sale of the home.
People often come to me and say, “I want to give my house to my daughter so the nursing home won’t get it.” What they really mean is “I want to give my house to my daughter so Maine Care will not be able to take any of the proceeds of the home when I die.”
There are many ways to give your house to your children if that is your goal. Below is a handout (PDF) that discusses the different options and their advantages and disadvantages.
- Joint Tenancy
- Outright gift to children
- Life Lease
- Irrevocable Trust