Choosing an Elder Law or Estate Planning Attorney

who is Familiar with Medicaid Laws

By the GWAAR Legal Services Team,  January 2020

 Elder law is a legal specialty area focused on the specific legal needs of older adults. Elder law attorneys have a wide variety of expertise with trust and estate planning, Medicare, Social Security, retirement, guardianships, health and long-term care planning, public benefits including Medicaid, and many other legal issues affecting older adults.

That said, not all elder law attorneys are familiar with every aspect and every detail of the law that may affect older adults. Some elder law attorneys may be well-versed in estate planning and guardianships but not know much about Medicaid law.

 If you are in a Medicaid program or are likely to ever need Medicaid, especially for any type of long-term care, it is important to find an elder law attorney who is experienced in Medicaid law (sometimes called “Medicaid planning.”) Even if this attorney focuses on drafting a will or a trust for you, it is important that the attorney is aware of and can spot potential issues with Medicaid in the future. If you are in a Medicaid program or are likely to ever need Medicaid, especially for any type of long-term care, it is important to find an elder law attorney who is experienced in Medicaid law (sometimes called “Medicaid planning.”) Even if this attorney focuses on drafting a will or a trust for you, it is important that the attorney is aware of and can spot potential issues with Medicaid in the future.

The issues related to Medicaid that could arise, could be prevented, or that could be minimized may include:

Eligibility – For example, an estate plan with careful attention to Medicaid planning could include setting up burial trusts or other types of exempt assets that may make someone eligible for Medicaid services.

Divestment penalties – Long-term care Medicaid programs have income and asset limits to qualify. If someone gives money away or sells something for less than fair market value in order to qualify for Medicaid, that could be seen as a divestment and the Medicaid recipient would be subject to related penalties. An attorney who is familiar with Medicaid laws may be able to find ways to prevent this from happening or lessen its impact.

Estate Recovery – Medicaid law allows the state to recover some costs that were paid on behalf of a Medicaid recipient. This includes placing a lien on the person’s home and/or making a claim against their estate. An attorney who is familiar with Medicaid laws may be able to help with estate recovery as a potential issue.

The types of Medicaid services that may be affected by these issues include long-term care nursing home Medicaid, Medicaid recipients who are considered “institutionalized” in the hospital, and community-based waiver programs such as Family Care, IRIS, Community Options Program (COP), and others. Also, it does not matter whether you are currently a member of any of these programs, if there is even a possibility that you may need these services in the future, it is a good idea to find an attorney who is familiar with Medicaid laws.

Please note that ADRC staff and Elder Benefit Specialists do not provide estate or Medicaid planning services or advice. You will need to contact a private attorney for that. Below are some resources to help you find one, and again, if Medicaid is a concern for you, make sure to ask that attorney if they are familiar with Medicaid laws and Medicaid planning.

National Academy of Elder Law Attorneys (NAELA)

· www.naela.org NAELA is a professional association of attorneys that is dedicated to improving the quality of legal services provided to people as they age. NAELA can help locate an attorney who specializes in Elder Law issues including Medicaid planning.

State Bar of Wisconsin Lawyer Referral and Information Service (LRIS)

· (800) 362-9082 · http://www.wisbar.org/forPublic/INeedaLawyer/Pages/Lawyer-Referral-Request.aspx LRIS is a service provided by the State Bar of Wisconsin that assists prospective clients in finding an attorney to represent them given their specific legal needs. Attorneys referred through LRIS agree to charge no more than $20.00 for the first consultation, up to 30 minutes.