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Elder and Special Needs Law

Elder and Special Needs Law is a fast-growing field that deals with legal and related issues faced by seniors and adults with disabilities. Elder Law Attorneys work (not only with clients, but often with their families) to maximize the elder or disabled adult’s self-determination, independence, and safety, while protecting their goals, choices, and assets.

Elder law combines elements of estate planning – such as drafting trusts, wills, deeds, and powers of attorney, which allow the senior to delegate management to another in case of incapacity, while assuring that choices made today are carried out tomorrow.

Additionally, Elder and Special Needs Attorneys advise and assist with healthcare and financial planning, including Medicare, Medicaid, Social Security, and insurance policy issues. We work cooperatively with associated professionals – social workers, care specialists, and others – to serve the needs of our clients.

And if your loved one no longer has the ability to make informed decisions or manage their own affairs, Elder and Special Needs Attorneys advise and assist you in establishing guardianships to protect them when other, less intrusive options have been exhausted.

Resources for Senior Citizens

Many difficult and puzzling problems face Senior Citizens today — Issues of health and finances, the determination to remain independent. There are many places to look for solutions.

Drafting Documents to Authorize Effective Assistance

Choosing trusted assistants for health and financial matters is critical. Drafting a health care power of attorney and a general durable power of attorney can assure that the individual has the care that he or she chooses. Documents drafted ahead of time avoid or minimize family disputes that can cost money and time and create heartache. If you are concerned about a elderly family member, offer assistance with preventing problems by getting expert assistance as soon as possible. Every Senior should have a lawyer to call on for advice and drafting, and someone trustworthy to assist in times of stress.
In publications:

Directory of Resource for Older Adults in Wake County, published by Resource for Seniors, Inc., 919 872-7933;

Senior Citizens Handbook, published by the Law and Aging Committee, Young Lawyers Division of the North Carolina Bar Association, 800 662-7407;

Or on the Internet:

The Triangle United Way has a directory of Human Services including those for Senior Citizens.

North Carolina State University, NC Cooperative Extension Service, and the North Carolina Bar Association Elder Law Section provide information on Medicaid benefits for nursing homes.

The Wake County Court system has information on the services and procedures of its Estates and Special Proceedings Divisions.

Wake County Human Services Department provides many services and information.

Preparing for Medicaid Eligibility

It is easy to confuse Medicaid and Medicare. Medicare provides hospitalization and doctor’s care for all elderly, with an optional additional medical benefit. Medicaid provides greater assistance, including nursing home expenses, for elderly and disabled persons who are indigent.

Elderly and disabled persons who meet certain income and asset limitations, may qualify for Medicaid benefits to pay for medical expenses, including long term care in a nursing home. Medicare, the traditional government provided insurance for the elderly, does not pay for care in a nursing home, except in very limited instances. Therefore, if an elderly person is unable to pay for a nursing home stay and does not have long term care insurance, Medicaid eligibility is an important benefit. The Medicaid rules vary somewhat from state to state, and these rules change frequently, but there are some general rules to understand:


A certain level of income will not make a person ineligible for Medicaid; however, the recipient must spend certain amounts of the income toward the cost of care before receiving Medicaid benefits. For instance, a person in a nursing home receiving benefits, must spend all but $30 of his or her income each month to pay the expense of the nursing home care, and then Medicaid will pay the remainder of the expenses. In addition, a spouse of a nursing home patient will be allowed to retain a certain amount of the couple’s joint income.


The basic rule is that, to qualify for Medicaid benefits, a person can have a maximum of $2000 (the Reserve Allowance), plus any exempt assets. Of course, the rules and the numbers change frequently.

Some of the common exempt assets that a person can own and still qualify for Medicaid:

The Residence

This includes the land around it. It can be a mobile home. It will stop being counted as an exempt residence if the recipient does not expect to be able to leave the nursing home and return home to live, unless the spouse or dependent child continues to live there.

Burial Arrangements

This includes an irrevocable prepaid burial contract and burial plots for the recipient and spouse.

Interests in land

Medicaid does not count land that is co-owned, life estates, or remainder interests.

Annuities, 401(k)s and other financial asset

If they cannot be cashed. The income would reduce benefits paid. There are complex limits to these.

Estate Recovery

An important aspect of the exemptions rules is the fact that the exemptions only last during the life of the recipient. When the recipient dies and the exempt assets go into the estate, they are subject to attachment by the State for recovery of the Medicaid benefits paid to the recipient.

Transfer of Assets

As people consider these rules that require impoverishment, one solution that is frequently considered is to make gifts of assets to children or other loved ones. There are many reasons this may not be a good idea. One is that there is a penalty for any transfer that is made within 36 months of applying for Medicaid and that is not exchanged for fair market consideration. There are also gift tax, income tax and family dynamics to consider in making such gifts.