Richard Marchese, Elder Law Attorney

Ella assured herself her husband was basically okay. George’s confusion happened only occasionally. There was no need to worry the kids. She was managing, with some days harder than others.

Her house of cards crashed the day George fell and broke his hip. After two weeks in the hospital, filled with episodes of delirium and challenging pain management, Ella succumbed to the hospital’s pressure to select a nursing home for him. She could no longer care for him at home. Within days, George transferred to what turned out to be a less- than-ideal facility. It came with a $15,000 per month price tag after Medicare coverage for rehab ran out. Ella soon realized their savings would disappear. Thank goodness they had gifted their daughter $5000 to help her settle into her new home last year, she thought.

Ella reluctantly applied for Medicaid coverage for George’s long-term care. She had no idea that her daughter’s gift would result in a penalty, because application for Medicaid (medical coverage for poor and middle class) requires looking back five years to discover transfer of assets. Ella was overwhelmed.

Conversation with Richard Marchese, Elder Law Attorney

“Happens all the time,” says attorney Richard Marchese, Partner in Woods, Oviatt and Gilman’s Elder Law and Health Practice Group.

“Sometimes there’s a great reluctance to let others, even in your own family, know what you’re going through. ‘I can take care of it myself,’ or, ‘My wife is getting more forgetful, but it’s not a big thing.’ There’s a lot of masking that goes on about what’s really happening. It leads to a crisis down the road if things get out of control.”

When should Ella and George have met with Marchese? When Ella was still managing and not needing any help?

“Right at that point,” Marchese says. “I’d rather see them when things are going relatively well.” At that time, Marchese would have done the following for Ella and George.

• Identify the most trusted person to have Power of Attorney so that, if something happens, he or she can act on their behalf. There may occur a crisis when the elder may not be mentally intact enough to sign anything. Then the $500 cost for a Power of Attorney becomes a $7,000 court cost to establish guardianship.
• Make sure there is a designated health care proxy.
• Make sure the wills are in order.

According to Marchese, Elder Law has grown over the last 25 years, driven by skyrocketing costs of health care. He has seen it all. Prior to his position at Woods, Oviatt, and Gilman, he served as Chief Counsel to the Monroe County, N.Y. Department of Social Services, advising the Chronic Care, Home Care, and Adult Protective units at that agency.

Caring for the Elderly — The Current Landscape

Today’s medical advances enable people to live longer. The longer people live, the more  bills pile up as care needs increase.

“Medicaid used to be a program for the needy, but you have a couple that has been able to save $100,000, or even up to $500,000, that money can be gone pretty quickly because of an extended stay for two or three years in a nursing home…A lot of people want to leave something to their kids, and don’t mind paying what they think is their fair share. (Elder law) helps people navigate through that,” Marchese explains.

Clearly, it is not wise to put financial challenges of longer life with chronic illness on the back burner. Early planning eases the transition to Medicaid, or makes it unnecessary altogether. Use of trusts is one way to protect assets.

“There are legal planning strategies that will allow for the protection of assets. Establishing an Irrevocable Trust to hold assets is a fairly common strategy. Such planning must be carefully designed and explained. If I am seeing somebody at an early enough stage, I can make an educated guess that nursing home care will not be needed for at least five years, which is the current look-back period for transfers of assets for folks applying for Medicaid in a nursing home.”

Options

Meanwhile, there are plenty of options in the community to support the elderly, and at far less cost than living in a facility. Fortunately, Monroe County is rich in resources, and with Marchese’s experience and contacts, his guidance is invaluable.

“If I can’t help somebody…I can make a couple of phone calls and hopefully get the help they need… I know geriatric care managers, people who can assist getting home care started or facilitating an admission to a good nursing home.”

He advises, “Don’t wait until a crisis to give a call to your attorney, or Elder Law attorney, because the planning is more pressure filled, and more expensive (later). Come in at an earlier stage when maybe you can predict what’s going to happen. It’s easier to have an established relationship with an attorney, so when that crisis happens, you’ll already have a game plan.”

Wise advice. Take it to the bank (literally)!