A family in Suffolk County gets the first bill from their mother’s skilled nursing facility. It’s nearly $16,000 for the month. They look at her savings, the nest egg she and their father so carefully built, and do the math. At this rate, everything she worked for will be gone in under three years. The house they grew up in will have to be sold just to pay for her care. This is a moment where good intentions meet a harsh reality—and it’s a situation my firm sees all too often.
Many people believe that a standard will or a simple trust is enough. They think of estate planning as a task focused solely on what happens after they’re gone. But what about the years leading up to that? What about protecting a lifetime of work from being consumed by the staggering cost of long-term care? This is the domain of elder law. It’s about planning for life, not just for death. It is about ensuring dignity and financial stability during a person’s later years.
Beyond the Will: Instruments for Living
When I meet with families on Long Island, one of the first things we discuss is the difference between an estate plan and a life plan. An estate plan distributes assets. A life plan, central to elder law, preserves them and protects the individual while they are still living.
This requires a different set of tools—documents that function while you are alive but may be incapacitated. These include:
- A Durable Power of Attorney: This appoints a trusted agent to manage your financial affairs if you cannot. Without it, your family might have to petition a court just to pay your bills or manage your investments—a costly and public process.
- A Health Care Proxy: This designates someone to make medical decisions on your behalf if you lose the capacity to do so. It is the only way to ensure your wishes are followed and to avoid disputes among loved ones.
- A Living Will: This document outlines your wishes regarding end-of-life care, such as the use of life-sustaining treatment. It provides clear guidance to your health care agent and physicians.
These documents are not about giving up control. They are about asserting it. They are your instructions for a future contingency, put in place with a clear mind to protect yourself and the people you love from making agonizing decisions under pressure.
The Five-Year Look-Back: A Costly Misunderstanding
The single most common and financially devastating issue we encounter in elder law is the failure to plan for Medicaid. Many families assume they can simply transfer assets to their children when a parent needs nursing home care. They give away the house or empty a bank account, thinking they are protecting it. The law is not that simple.
To qualify for Medicaid to cover long-term care costs in New York, an applicant must meet strict income and asset limits. To prevent people from giving away their assets to qualify, the state employs a “look-back” period. Under New York Social Services Law § 366, any non-exempt assets transferred for less than fair market value within this five-year period can trigger a significant penalty. This penalty is not a fine—it is a period of ineligibility for Medicaid coverage, calculated based on the value of the assets transferred.
Imagine a parent gives their child $150,000. A year later, the parent needs nursing home care. Because the gift was made within the five-year look-back period, Medicaid will impose a penalty period. The family will be forced to pay for the care out-of-pocket for months, or even years, until that penalty period expires. The gift, meant to preserve a legacy, ends up creating a financial crisis.
Prudent planning—often involving specific types of irrevocable trusts created well in advance of any illness—is the only deliberate way to protect family assets while ensuring future eligibility for care. It requires foresight and an understanding of how these rules work. Stewardship.
Guardianship: The Court’s Last Resort
What happens when there is no planning? When someone becomes incapacitated without a durable power of attorney or health care proxy, the family is left with one option: petitioning the court for guardianship.
A guardianship proceeding under Article 81 of the Mental Hygiene Law is the legal process for having a person declared legally unable to manage their own affairs. A judge, not the family, appoints a guardian to take control of the person’s property and personal needs. While necessary in some cases, it should always be the last resort.
Guardianship is public. The details of your family’s finances and health become part of a court record. It is expensive, involving court fees and attorney costs for multiple parties. Most importantly, it strips an individual of their autonomy. The right to decide where to live, what medical care to receive, and how to spend one’s own money is handed over to someone else—who may not be the person you would have chosen.
This is the outcome that intentional elder law planning is designed to avoid. By being the custodian of your own legacy, you make these decisions yourself, on your own terms, and keep your family out of a courtroom.
If your parents have a will but no plan for long-term care, the time to address it is now. A plan starts with reviewing existing documents—specifically the power of attorney and health care proxy—to determine if they are adequate. To schedule a review of your family’s documents with my office, call us to make an appointment.
