The Five Most Common Mistakes an Elder Law Attorney Sees

In my experience clients want to know two things: 1) What should I do?  2) What should I avoid doing?

I think most folks get enough of “You need to do this . . .. ”  So no preaching or nagging today.  Instead let’s focus on the second one and call that the “mistake” category.  What are the common mistakes I see?  First let’s set the context.

The context is aging.  It is invariably true that as we age we cannot expect to be in control of our daily affairs.  The spirit may be willing to be “forever young” but the flesh is weak.  That means we need somebody to take care of things for us. Pay the bills, get money out of the bank, manage all medical matters including from making appointments to following through the treatment program.  This period of need may run into months or years.

So without further ado, here are the Five Most Common Mistakes.


First Mistake: Doing Nothing

Some elders don’t do anything because they feel they will lose control.  It’s like some people don’t want to do a Will because there is this irrational fear that they will die if they do.

What’s the result of doing nothing?  Lifetime probate and that means the probate court must appoint a guardian or conservator to handle the elder’s affairs.  One study found that the number one cause of probate guardianship petitions was the need for emergency medical treatment when the patient cannot give consent.

The cost of lifetime probate is enormous.  When a full guardian and conservator is appointed the elder loses all control over life.  The guardian makes all the personal decisions such as where to live and what medical treatment to have.  The elder will not go shopping since the conservator controls all money and property.  It’s like being a child again.


Second Mistake: Joint accounts with Children

Many seniors think they are all set if they have a daughter or son on their bank accounts with them.  The thinking goes “that way they can pay the bills if I cannot.”  There are many problems with joint accounts.

The first is that it solves only one problem of aging: paying bills. Joint accounts give the child no ability to help the parent in any other way.  If the child calls the insurance company they will ask “Are you the insured?” The child will say “No. But, I’m joint on the bank account.” That goes nowhere.

The more serious problem is the risk of loss of life savings. Here we are not talking about thieving children, but children who have financial bad luck.  Suppose the daughter loses her job and so loses her health insurance and runs up big bills.  Suppose she defaults on her mortgage too and files for bankruptcy.  Any account the parent has with the child is at risk of being lost.  A couple years ago there was a news story about a lady who lost $56,000 because her daughter was on her bank accounts and the daughter defaulted on a truck loan to the bank.  The bank took the money out of the Mom’s account because daughter’s was considered to be an owner of the funds.  The same can go for the house.  If a child is a joint owner, then if the child is sued, divorced or goes to bankruptcy so does the house.

And finally,  joint accounts can be the source of probate battles after the death of the parent.  What if a parent makes an account joint with one child? After the parent dies, does the child have to share with all the other children?  What if the parent’s Will says to share equally?  Unfortunately there are no absolute legal rules and questions like these are often answered after a bitter battle in probate court.


Third Mistake:  Preparing only for death and taxes.

Many people think they are “all set” if they have a Will. From the elder law perspective the answer is “No.” A Will is only effective at death.  We are talking about lifetime issues, not what happens after we die.

In the same way people think they all set if they have all the children as beneficiaries on bank accounts.  Again that is only preparing for death.

These strategies create no authority to access an account to pay bills, to make any medical decisions or to handle any other business during the parent’s lifetime. Instead of avoiding probate these guarantee probate.


Fourth Mistake: Paying Caregivers under the table.

Too often I hear “We found a lady in the neighborhood who can help mom and she wants to be paid in cash.  She does not want to pay taxes.”  The problem is that under the law this lady is a “domestic employee.” The employer has a whole host of legal responsibilities

Mom is the employer who is legally responsible for withholding income taxes and paying the unemployment and FICA taxes: social security and Medicare and more. In addition the employer must be covered for workers compensation losses.

Suppose the lady falls down the  stairs carrying laundry.  She can file for workers compensation and have her medical bills and her wage loss paid by the employer – Mom.  If  we “let her go” because daughter can now do it the lady could file for unemployment.  Once these events happen “the government” learns about the employment and then Mom pays everything including back taxes, interest and penalties


Fifth Mistake:  Not getting legal advice before applying for “means tested” government benefits.

Anybody who has filed an income tax return knows that government programs are complicated.  That’s because they were written by a committee.  A very Big Committee —  Congress.

The most common means tested benefits I see are the Veterans Pension benefit, often referred to as “Aid and Attendance,” and Medicaid for the nursing home.   The loss of the benefits can be enormous.  The Veterans benefit can be over $25,000 a year.  The loss of Medicaid coverage can be worth almost $100,000 in just one year.

The Veterans Pension benefit will be denied if the veteran is too high in “net worth.”  Once the veteran presents a claim to the VA and the VA denies it, the veteran is denied for an entire benefit year. Only if his net worth declines because he used the funds for medical expense will the VA reconsider.  It’s too late for him to “shelter” the excess.  The veteran should have gotten legal advice before making a claim to the VA.  And note, the VA will consider a telephone inquiry about the benefit to establish a “benefit year.” If the vet inquires, then disposes of assets and applies, the VA will need proof of net worth as of the date of the phone call.  Benefits lost. And finally, the VA is promising very big changes to their eligibility criteria this year. The purpose is to prevent vets creating eligibility by giving away assets.

Medicaid is even worse.  Too often families pay nursing home bills because they were told they had too much money.  People are told they must spend all savings down to $2,000 and they think that must be to the nursing home.  They are not told that there are many ways to “spend down” that do not involve paying the nursing home and do involve keeping the asset value in the family. One reason why patients and families are not told their options is that the Medicaid program is very complex.

Here is one final problem in this area.  It is possible to get advice from the VA, or a Veteran Service Organization such as the VFW, or from the Medicaid worker.  The problem is they do not represent you. They represent their agency and that means they cannot tell you all your options.

When it comes to these government benefits get legal advice.


It Is Really Easy to Do it Right

For the average person a “life care” plan is no more difficult than preparing for “death and taxes.”  All you have to do is identify your trusted assistants and give them authority to do what they will need to do – everything. And then make sure they know when to get professional advice. That means they should know when to see a lawyer, an accountant, or an investment, insurance, building and trade professionals among others.  Do that and you are 99% there to having aging go as smoothly as it can be.

Wishing you all the best,

Jim Schuster