|
By Susan Miller London I noticed a recent announcement in The Suffolk Times that John Bigler, an attorney specializing in elder law, had joined the Southold firm of Caminiti and Gibbons. It occurred to me that I had never written a column about elder law, probably because I don't know very much about it. So I decided to phone Mr Bigler, who was very gracious with his time, to see what I could learn. Elder law, according to Mr Bigler, is not defined by subject, but rather by the population it serves and by their specific problems. It's grown as a field to meet the needs of an aging population, especially ones that's more educated, more affluent, heathier and living longer. Attorneys who specialize in elder law focus on such areas as wills, trusts, estate planning, living wills, right to die issues, as well as on problems relating to Medicare and Medicaid, nursing homes placements and finances, catastrophe illnesses, health care proxies and power-of-attorney. In addition to financial and health issues, elder law practitioners also deal with consumer problems and age discrimination issues in the work place and in housing. John Bigler's practice is often involved with problems relating to long term catastrophic illness, which we talked about at length. His role, he explained, is to help old people get the kind of medial care they need while protecting their assets so that their spouse does not have to give up all resources and become impoverished. I was surprised when he talked about the "misconceptions based on a lot of misinformation and terrible advice older people have received, often from professionals." I thought the situation regarding nursing homes and Medicaid was pretty clear-cut. A person goes into a nursing home, pays $5,000 to $8,000 a month until he or she is impoverished, and then Medicaid kicks in. I was once helping an older friend who was trying to transfer her assets to her children to prevent total loss when her husband went into a nursing home after a massive stroke. From that, I understood that the transfer must be done 36 month prior to the admissions. Mr. Bigler jumped on this as an example of the misconceptions people have. He said that 36 months is only a "lookback period": Of the transfer has occurred in less time, it does not mean that the person will be denied Medicaid, but that there will be financial penalties. there are a range of penalties, and interestingly in the case of home health care and penalty for transfer if funds in less than 36 months is zero! I also learned from Mr. Bigler that in New York, which is considered the most liberal state in relation to Medicaid entitlement, the Community Spouse's Resource Allowance mandates a set amount the spouse can keep to avoid impoverishment. But should a spouse refuse and decide to keep all the funds, the ill spouse will be not be denied Medicaid. It is then up too the Government to sue the healthy spouse. in the past five or size years, according to Mr. Bigler, the government has been largely unsuccessful in these suits. After trying to figure all this out, it became apparent to me why the services of an elder law professional has become a necessity. The issues are not clear cut after all. Since the 1989 Community Spouse's Resource Allowance, Mr. Bigler has felt freer to tell his clients "Don't be so quick to give your money away.": He advises the elderly not to transfer their money to their children because they fear the inevitable: the nursing home. First of all, he points out that most older people do not wind up in a nursing home. (In any given year, only 5 percent of the elderly population lives in nursing homes.) Mr Bigler also feels that having to go to their kids or their money, even in the best of families, might reduce the older people's "dignity and independence." John said:"I tell them to relax and use their money for a trip to Hawaii. "Besides, in the worst case scenario with last minute transfers to a healthy spouse, half of their money can usually be saved. Also transferring assets to children can be problematic if an older person does have to enter a long-term care facility. Having no assets makes you "Less desirable prospective nursing home resident" said Mr. Bigler. BEing able to pay for your care in the initial phase make it easier to get into the nursing home of choice. Mr. Bigler also pointed out that when people are thinking about transferring funds to their children, they usually forget that Medicare also provides benefits. Although they are not extensive, they should be factored in when making a decision. (For example, Medicare pays for the first 100 days of nursing home care when prescribed by a physician", obviously, the issues are not simple. In our phone conversation, John spoke about his field with such feeling and enthusiasm that I assumed he was an older person or a retired lawyer. My own ageist stereotypes showed when I learned that he's only 44. I was curious to know how he came to elder law. John started his career as a Legal Aide Lawyer and mainly worked with welfare recipients, so he knew a great deal about Medicaid and Medicare, Social Security disability, and social services. So it seemed natural to consider elder law when he went into private practice. "I love it", he told me. "Unlike my friends who are criminal or divorce lawyers, 90 percent of the people I see walk away are happy." Most of his clients are middle class, not poor or wealthy. He described them as "decent people who struggled through the Depression, saved, bought their own homes, and are struggling to hang on to what they have." He added: "Besides they're fun to listen to. They tell such good stories." Reprinted with permission of the Suffolk Times © 1999 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |