Insights - March 12, 2018

Q&A Series: Elder Law / Part 1

Elder Law is a complex and highly specialized area of practice that requires a comprehensive understanding of both State and Federal Laws in addition to the ability to tailor legal strategies to each client’s unique needs. Senior Counsel Genny Bernstein, a Board Certified Specialist in Elder Law, has answered some of our client’s most commonly asked questions.

Medicaid eligibility and veteran benefit entitlements have been updated for 2018 as reflected below.

What is Elder Law?

As individuals grow older and life expectancy increases, their physical capabilities, healthcare needs, and other concerns change. Elder law focuses on estate planning, health care needs, living environments and the avenues to help pay for care costs. Every family’s circumstance varies and objectives must be specific to each. We are here to address, analyze and help navigate the needs of our Florida clients with complex and sometimes overwhelming issues. Additionally, many of the same issues that affect our seniors can also affect those with disabilities. Counseling families as to proper legal documents and processes can be crucial to support and protect loved ones with special needs.

How do I pay for the cost of long-term care?

As clients age, the need for assistance with everyday activities is a commonplace. While many seniors would like to stay in their home, it is not always a viable option. Oftentimes, additional support in an assisted living or skilled nursing facility is required. Notwithstanding where the care is occurring, the costs can be expensive.

The question remains: how can the cost of such care be paid?

There are generally three ways to answer this question. The first is to pay out of pocket. This reduces and can even exhaust an estate, thereby creating the concerns of outliving one’s money. The second is through long-term insurance, if affordable and if one is insurable. The third is through government benefits, if eligible, through programs such as Medicaid and/or Veteran Benefits.

Long-term Care Medicaid in a Nursing Home
Do I Qualify?

Long-term care in a skilled nursing home can be very expensive, costing an average of $80,000-$100,000 dollars per year. A Government benefit program such as Medicaid and the qualifications required to obtain these benefits can be confusing. For simplicity, to qualify an applicant must meet a medical, asset, and income component. The medical criteria is determined by the level of assistance an applicant requires with their activities of daily living, such as dressing, bathing, and medication management, to name a few. Concerning the assets, the maximum countable limit is $2,000 for the applicant. Notwithstanding this asset limit, there are exempt assets that are not countable including a car at any value, personal effects and furnishings, a burial account with a cash value up to $2,500, and prepaid burial plans/plots and irrevocable funeral plans. Lastly, there is a gross monthly income limit that applicants must have in order to meet the criteria. This is referred to as an “Income Cap.” The current gross monthly figure for 2018 is $2,250.00. However, do not assume that you are ineligible and benefits cannot be obtained if your income is too high. In these situations, the creation of a Qualified Income Trust (QIT) can be used to hold the excess income, thereby meeting income qualifications. Additionally, if an applicant is married, we must also address the income and assets of the spouse.

Preserving one’s assets for long-term care nursing and having Medicaid assist with the costs can make a significant difference in the quality of life for those that require a nursing facility or similar types of care. An experienced Elder Law attorney will assess a client’s current state of affairs, strategize various options, and determine if and how a client can qualify for Medicaid benefits.

VA Benefits for Aid and Attendance
Do all Veterans qualify?

The US Department of Veteran Affairs (the VA) offers a variety of benefits to Veterans and their loved ones from health care to financial benefit programs. Pension with Aid and Attendance is a benefit for non-service connected Veterans, meaning Veterans that did not sustain an injury or aggravation to an injury during wartime service. This program is “Needs- Based.” There is often the misconception that every Veteran is automatically eligible for such benefits due to being in the service. However, this is not always the case. The questions then become; does a Veteran qualify for Pension with Aid and Attendance and what are the requirements?

Although a Veteran must first be eligible for the pension portion of the benefit prior to receiving Aid and Attendance, the process can often be complicated and become a waiting game. The criteria contains a service component in addition to a medical need, as well as an asset and an income limitation. A Veteran must meet all of the criteria to obtain benefits. In addition, a spouse and certain dependents of a Veteran may also be entitled to benefits. However, they must also meet certain requirements to obtain the benefit.

To qualify, the Veteran must have served on active duty for a period of ninety (90) days with at least one day being during a wartime period. The wartime periods are outlined by the Veteran Administration, and include World War II, the Korean Conflict, the Vietnam Era, and the Persian Gulf War, to name a few. The Veteran must have been discharged under conditions other than dishonorable. In addition, a Veteran must be either 65 years or older or permanently and completely disabled.

Since this type of VA program is for those with limited financial means, there is a net worth determination. While the VA has stated that there is no specific asset limit defined by law, $80,000 is often used as a measuring scale at the high end for the net worth limitation. However, the age and asset amount of the applicant should be analyzed prior to submitting an application.

Lastly, eligibility is contingent on Gross Countable Income. This is determined by combining the gross monthly income for all sources (i.e. social security, pension, etc.) from the Veteran and/or spouse and reducing it by the out of pocket monthly recurring medical expenses. This math equation will assist in determining the amount of the benefit, if any. The higher the unreimbursed medical expenses, the better chance of benefits. If the unreimbursed medical expenses exceed the gross income amount, the applicant may receive the full benefit. This type of benefit will be helpful to pay for the costs of home care and assisted living. For some, it may even assist with the costs of a skilled nursing facility.

This chart reflects the current Monthly Pension Rates/Fact Sheet for Pension with Aid and Attendance (Effective date 12-1-2017)

Improved Pension Maximum

Aid Attendance Maximum




Veteran with 1 Dependent



Widow of a Veteran



Widow with 1 Dependent



Veteran Permanently Housebound



Same as above with 1 Dependent



Widow Permanently Housebound



Same as above with 1 Dependent



Only a VA accredited Attorney and Agent can assist with these type of applications.

Medicaid and/or Veteran long-term planning, whether in a crisis or if done proactively in pre-planning, involves a comprehensive plan to protect assets within the parameters of the laws, in order to avoid a client, their spouse, and possibly their family from financial impoverishment. It is imperative to speak to with a specialist to customize the proper plan for each family’s unique situation.

Medicaid & VA Conflict

When the time arises that clients and their families begin dealing with the aging process and the medical needs that can accompany them, finding solutions becomes the priority. However, beware; what one program allows may be completely different from another. This is often the case when planning for Medicaid and Veteran Benefits. There is some overlap with criteria, but the strategies used often lead to problems with eligibility between the two. Hiring a specialist to assist can negate ending up in the Medicaid/VA conflict.