Elder Law FAQs

• • What does an elder law attorney do?

• • Elder law is a specialty practice focused on the legal, financial, and care-planning needs of older adults and their families. An elder law attorney helps clients navigate Medicaid eligibility and planning, long-term care decisions, incapacity documents, asset protection, and succession planning.

    Many families come to an elder law attorney only after a crisis has already begun. Coming earlier almost always produces better outcomes.

    The issues that arise as people age rarely fit neatly into a single legal category. Medicaid rules, succession law, and incapacity planning all intersect, and a misstep in one area can create problems in another. An elder law attorney works across all of those areas as a single, coordinated plan.

• • What is the difference between Medicare and Medicaid for long-term care?

• • Medicare is federal health insurance for people 65 and older and for certain individuals with disabilities. It covers skilled nursing facility care, but only for a limited period following a qualifying hospital stay, and only for medical care, not for ongoing custodial care. Once that coverage ends, Medicare stops paying.

    Medicaid is a joint federal and state program based on financial need. In Louisiana, Medicaid is the primary public payer for long-term nursing home care and, through waiver programs, for home and community-based services as well.

    Qualifying for Medicaid requires meeting strict income and asset limits. Planning well in advance of a care need is the most effective way to protect what you have built while preserving your access to these benefits.

• • How does Louisiana’s Medicaid lookback period work?

• • waiver programs covering home and community-based services.

    When you apply, the state reviews your financial records for the five years before the application date. Any assets transferred for less than fair market value during that window, including gifts to family members, can trigger a penalty period of ineligibility.

    Your penalty is calculated by dividing the total value of disqualifying transfers by the average monthly private-pay nursing home rate in Louisiana. The result is the number of months Medicaid will not pay for your care.

    This penalty period does not begin until you are in a nursing home, have applied, and have already spent down to the asset limit. That delay can leave families in a serious financial gap if planning was not done in advance.

• • What documents does every older adult in Louisiana need?

• • The foundation of any incapacity plan includes a durable power of attorney, a healthcare power of attorney, and an advance directive. In Louisiana, what most states call a “power of attorney” is technically called a “mandate” under the Louisiana Civil Code.

    Properly drafted, a mandate gives your designated agent the legal authority to manage your finances and property if you lose the capacity to do so yourself.

    A healthcare power of attorney designates someone to make medical decisions on your behalf. An advance directive, sometimes called a living will, states your wishes regarding life-sustaining treatment.

    Without these documents in place before incapacity occurs, your family may have no choice but to pursue interdiction through the courts.

• • What is interdiction in Louisiana, and why should I avoid it?

• • Interdiction is Louisiana’s court process for establishing legal guardianship over an incapacitated adult. The person appointed by the court is called a curator, and the person placed under guardianship is called the interdict. It is the equivalent of what other states call a guardianship or conservatorship.

    Interdiction is expensive, time-consuming, and strips the interdict of nearly all civil rights. It requires a formal lawsuit, court hearings, and ongoing court supervision of the curator’s actions.

    Because of how invasive the process is, Louisiana courts are required to use the least restrictive approach possible, and they consider whether less restrictive alternatives exist before ordering a full interdiction.

    A properly executed mandate and healthcare power of attorney, put in place while you still have capacity, may help avoid this process entirely. Prevention costs a fraction of what interdiction does.

• • When is the right time to start elder law planning?

• • The right time is before a health crisis forces the question. Medicaid’s five-year lookback means that effective asset protection requires years of lead time. Incapacity documents must be signed while you have the legal capacity to do so.

    Most families delay because the conversations are uncomfortable. A nursing home admission, a dementia diagnosis, or a sudden hospitalization tends to accelerate these conversations in ways that limit options. The families who fare best are those who planned before the need was obvious, rather than after it became unavoidable.

Ready to preserve your legacy?

We can help you prepare for the eventualities of aging, and you can set the wheels in motion by calling our Metairie, LA estate planning office at 504-831-2348. And if you would like to send us a message, use our contact form and we will be in touch as soon as possible.