Experienced Guidance

When Life Gets Legal SM

Staying at Home – Considerations for Elders and Their Caregivers

Many elders fiercely guard their independence. When additional care becomes necessary for them to stay healthy and safe, most prefer to stay in their own home rather than moving to a retirement community, assisted living facility, or even a nursing home. Staying at home often means being at a distance from their primary family support. Although staying at home creates many hazards, steps can be taken to avoid the many concerns that surround aging in place.

Caregivers should seriously consider hiring a geriatric care manager, who is a health care professional with training in gerontology, social work, and nursing. A geriatric care manager will conduct an initial assessment of the elder and develop an individualized care plan. In long distance caregiving situations, where a family member is involved in ensuring the elder’s proper care from afar, the geriatric care manager will act as a liaison for the family member by overseeing the elder’s care, providing a report to the family member at regular intervals, and alerting them to any potential problems. Whether family member is close by or not, the geriatric care manager’s additional oversight provides peace of mind and protects the caregiver from claims that they are not conscientiously carrying out required duties.  Geriatric care managers are also quite skilled at interfacing with the medical community and obtaining needed care efficiently whereas untrained family members may struggle to obtain the same results.

Many times, caregiving is interrupted when the elder has not established an estate plan, as this leaves caregivers unable to handle financial and medical decisions if the elder becomes incapacitated. By executing a Durable Power of Attorney and Health Care Proxy, the authority to make financial and medical decisions can be granted to the person that the elder chooses. The caregiver should also be sure to discuss end of life decisions with the elder and ensure that the elder’s wishes are memorialized in writing within the proper legal document, which could be either a Living Will within their proxy or, in appropriate situations, a MOLST (Medical Order for Life Sustaining Treatment), which has superseded the Do Not Resuscitate Order.

Determining how to pay for increased care when needed is also very stressful. Occasionally, the elder has resources to privately pay for their care, or they can access benefits provided by a long term care insurance policy. More commonly, the elder must rely on public benefits to help pay for needed care. In Massachusetts, there are many different MassHealth programs that can provide some level of care at home; however, each program has its own set of income and asset limits.  Thus, it is important to work with either an elder law attorney or an Aging Services Access Point to determine which programs would be available to the elder.

When planning, if the elder may relocate to another state, it is imperative to consider the regulations in both states. There are vast differences between the states, including but not limited to, asset and income limits, the effect of long term care insurance, and the effect of gifts. In addition, you will find variation in each state’s estate recovery rules, which are the rules that allow the state to recover the cost of benefits paid from the estate of a deceased recipient. Here, proper planning can ensure that benefits will be obtained as efficiently as possible while also minimizing exposure to recovery efforts.

For some veterans and their spouses, it may be possible to obtain an Aid and Attendance Pension through the U.S. Department of Veterans Affairs (“VA”). There are various eligibility requirements, including the length and type of military service that must have been completed, as well as asset and income limits. An Aid and Attendance Pension is available for qualifying veterans and their spouses who require assistance with activities of daily living (bathing, eating, dressing, transferring, or toileting) or who are blind or nearly blind. The Aid and Attendance pension can be used for any type of chronic care provider, including home care services, assisted living facilities, adult day care, or skilled nursing facilities. Working with a professional who is accredited by the VA to assist with the application process for this benefit is highly recommended.

Successfully staying at home when care needs increase requires proper planning and ongoing management of the various issues that will continually arise. Although staying at home presents many medical, legal, and financial hazards, with proper planning and advice, most elders can successfully stay at home.

Gina M. Barry is a Partner with the law firm of Bacon Wilson, P.C., Attorneys at Law.  She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association.  She concentrates her practice in the areas of Estate and Asset Protection Planning, Probate Administration, Guardianships, Conservatorships, and Residential Real Estate.  Gina may be reached at (413) 781-0560 or [email protected]

In This Section