Elder Law & Special Needs

Elder Law Planning

The cost of long-term care continues to rise with no end in sight. The annual fees for a quality nursing facility can easily exceed $120,000 per year. Qualified in-home care providers can receive over $80,000 per year. It is easy to see how a long term medical condition can wipe out all of one’s savings.


Medicaid is a program for the aged who are unable to pay for their medical care. To qualify for Medicaid, a person must have under $2,000 in assets. For a married couple, the healthy community spouse is entitled to retain a personal residence, a car and approximately $110,000 in other resources.

Medicaid has imposed stricter rules in an attempt to limit asset transfers made in order to qualify for Medicaid. There is a 5-year look back period on all gratuitous transfers. This means that Medicaid will impose a penalty delaying an applicant’s right to receive Medicaid if he or his spouse made any transfers to third parties within the 5 year period before applying for Medicaid.

DSRC has experience in assisting our clients for whom Medicaid eligibility is a concern. We help our clients in creating an estate plan which can protect one’s entitlement to receive Medicaid.

There are other government entitlement programs such as SSD and SSI for those who do not qualify for Medicaid. DSRC represents parents who are concerned about protecting the governmental benefits available to adult children after the parents are no longer around to care for them. We are experienced in drafting “Supplemental Needs Trusts” which provide benefits to one’s heirs without disqualifying the beneficiaries from their right to receive governmental benefits.

In some cases, a person receiving governmental benefits may receive money in a legal settlement or court judgment. The proceeds from the legal proceeding could adversely affect the person’s continued entitlement to SSD or SSI. DSRC protects our client’s right to receive governmental benefits by creating a “Special Needs Trust” with the proceeds from the legal settlement. The proceeds in the special needs trust can be used to provide economic benefits which would otherwise not be available if a person had to rely solely on governmental benefits.

The guardianship process requires the filing of court documents, the appointment by the court of an independent attorney for the purpose of reporting to the court its recommendation regarding the need for the appointment of a guardian, attendance and presentation of evidence at a court hearing, and the post-appointment filing of court documents. Guardianships are granted to assist people who are legally incapacitated which is to say that they are unable to make decisions in their own best interest about issues such as finances and health care. The person in question may be found totally or partially incapacitated due to Alzheimer’s disease, dementia, or another profoundly disabling mental or physical disorder. A guardian is given legal authority to make decisions in some or all areas of the incapacitated person’s life in the ward’s best interest.

Adult guardianships are also necessary when children with certain developmental disabilities reach age 18. People with disorders affecting cognition or daily functioning may be legally unable to make decisions on behalf of their children. When they reach the age of 18, the natural guardianship of the parent expires and be reinstituted by a court. Therefore, parents of children with substantial disabilities need to seek legal guardianship over those children once they turn 18.

The Courts regularly appoint DSRC counsel to serve as court-appointed attorneys to represent the incapacitated party in guardianship proceedings.