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Dealing with Long Term Care with No One in Charge

by Jeffrey Asher, Estate Planning Expert
March 15, 2012

Question: What happens when both I and my wife have to enter a nursing home at the same time?

Answer: This is a very interesting situation and one which is filled with a lot of issues. The first issue is – “who’s left to take care of things?” Usually when one spouse needs long-term care, whether at home or in a facility, such as a nursing home, the other spouse – the “well spouse” – is still able to handle the finances, make health care decisions, keep things together at home, etc. But what happens if there is no “well spouse”? Who will you have to take care of you?  It’s usually your children, or your other relatives, or your friends, or … no one.
 
When it is the children, other relatives, or friends, then those people – who we will call the caregivers – will evaluate nursing homes, pick the most appropriate one, and arrange for you to be admitted to the nursing home. Then, the caregivers will arrange for your care in the nursing home. This includes payment to the nursing home for the services and getting any benefits to which you are entitled. This may also include gathering all of the assets and/or selling assets, such as a house, to have the financing in place to pay the nursing home. Or the caregivers will meet with legal counsel to try and save your assets and, instead, qualify for government benefits to pay the nursing home. In any case, it is clearly better when there are people there to help.
 
But, if there is no one to help, and presuming both of you are in a hospital to start, then the hospital will arrange for a nursing home. The nursing home will attempt to locate any family members who will take responsibility and arrange for the sale of assets. Or, if family members cannot be found, then the nursing home will seek a guardianship. The guardianship strips you of all right to make your own health care and financial decisions. This may be appropriate given your conditions, but it is still an ugly proceeding and should only be used as a last resort. After a guardian is appointed, then, typically, the guardian will gather your assets, sell what can be sold, pay the nursing home, and apply for Medicaid benefits only after all the money is gone.
 
The second issue is – “how will we pay for the nursing home, if neither of us is able to take charge?” If both of you are in the nursing home, then there is no need to protect your things. You no longer need your home, your investments, your cash in the bank, or your income. Yes, you might have wanted to pass those things down to your loved ones, but as discussed above, the nursing home will want to get paid. It is not in the nursing home’s best interest to plan for your long-term care, preserve your assets, and apply for Medicaid benefits instead. First, nursing homes do not have the time or patience to wait for the long-term care plan to be effectuated. Second, nursing homes do not want to hire legal counsel to do this level of planning. And, third, nursing homes get paid less money under Medicaid. So, all-in-all, nursing homes would rather use up your assets and then seek Medicaid benefits when the money runs out. It does not matter to the nursing home that you could have saved your home, gifted away your assets, and still qualified for government benefits. But, it might matter and probably does matter to you and your loved ones. And, if given the opportunity, your loved ones might have been willing to do the planning to save these things and still get you the long-term care that you need and deserve. But, it all starts with the long-term care plan that you create now.
 
So, I think, the choice is rather clear. If you are worried about what will happen if both of you enter a nursing home at the same time, either do something about your own long-term care plans now, or risk no one taking responsibility for your long-term care planning in the future.

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Jeffrey Asher is a prominent Trusts & Estates and Elder Law attorney in Westchester County and New York City. Mr. Asher concentrates primarily in the areas of Estate Planning, Probate and Estate Administration, Elder Law, Medicaid Planning, and Special Needs Planning. Mr. Asher provides comprehensive legal services, tailored to meet your specific needs.

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