Medical science has allowed us to outlive our bodies’ shelf lives: Few people pass away quietly in their sleep, and less age without some issue arising with their mental acuity or physical capabilities. Dementia, arthritis, Parkinson’s, strokes, macular degeneration, Presbycusis, the list of ailments seems to increase every year. And, even worse, some people are afflicted by illnesses that may have ended their lives at an early age in the past, but now lead to a prolonged life of long-term hardship, such as Multiple Sclerosis, Diabetes, Muscular Dystrophy, Lupus, and many more.
Sick people are people, and they deserve the chance to live and thrive. If I have spent my life working hard and paying my taxes, why shouldn’t I have the opportunity to protect some of my money and qualify for government programs that less-fortunate people receive but have not paid for? Perhaps I feel my family should reap some of the financial benefits I have vigorously sowed throughout my life. On the other side, if I have had a prolonged illness not of my own making, how should a gift that is given to me now disqualify me from benefits being spent on my being a functional human being?
The answer to many of these long-term, expensive health expenditures is Medicaid. Medicaid is the payor of last resort, allowing excess payments of health care expenses to be picked up by the government. It also allows limited use of home health aides for my activities of daily living, and payment of institutional expenses if and when I need 24 hour access to nursing care. But how do I qualify if I have just a little bit too much money? What happens if my spouse has some funds and I do not want to impoverish her in the process? If I leave funds to my adult child, will he or she have to repay any healthcare expenses already paid for by the government? And is it possible for me to maintain any control over any assets, or any beneficial enjoyment over the income I am receiving from my past work? The financial stakes are immense, and require a Medicaid applicant to understand what they are getting into.
This myriad of choices and restrictions is best navigated by attorneys familiar with Elder Law Planning: Medicaid Trusts, Promissory Notes, Pooled Trusts, and other legal vehicles are not documents most people should attempt to draft and implement on their own. Every month that transfers are not made properly can drain family resources, each inappropriate choice of home health aide or care provider may lead to depression, any missed opportunity can evolve into the primary caregiver’s continuing frustration.
If we lose the ability to make a healthcare or financial decision, or if when doing so we cause ourselves irreparable harm, we need to have a person to make those decisions for us. Sometimes, when we have had foresight, we have already created a Power of Attorney and Health Care Proxy and named our choice of personal representative to manage these issues for us. But if we have not taken these steps, if the person serving no longer wishes to help, or if the parties we have named are no longer suitable to assist us, we need the state to intervene.
If we have a minor child who is disabled and about to reach the age of majority, we have to take steps to ensure no one takes advantage of him or her. This child may never be able to fully function in society, and it becomes important for us to focus on how to prepare for the remainder of his or her life, including the points when we are no longer available to help.
Guardianships under Article 81 of the Mental Hygiene Law or Article 17A of the Surrogate’s Court Procedures Act can be difficult processes, with exceeding court oversight, arduous record keeping, and usurious costs associated with them. Attorneys do not dabble in this area of the law: They specialize in it, or they don’t do it. Retain a lawyer that specializes in these proceedings.