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Elder Law is Really Elder Care — With Attorney Brian Tully Thumbnail

Elder Law is Really Elder Care — With Attorney Brian Tully


As many of you know, our population is aging. And as we continue to see more people age, we’re also starting to see an increasing need for elder law planning — even though many don’t have a thorough understanding of what this is and how it can benefit them and their loved ones.

In episode 56 of Retire Right, I was joined by Brian Tully of Tully Law, PC, who to shed light on the world of elder law and what it can do for you and your aging loved ones. Brian is a certified elder law attorney and has been practicing elder care law and estate planning since 1998. He’s an advocate for helping caregivers and their aging parents, and it’s his mission to help elders get the best care possible while protecting the most assets possible.

Read on to learn what Brian had to share about what you should know about elder law!


Why We Need to Plan for Elder Care


As we get older, there are two sides to aging. On one side, we can have medical issues or health issues that are medical in nature (such as cancer, heart disease, or diabetes), which involve hospitals, doctors, the emergency room, and rehabilitation facilities. With these types of issues, health insurance or Medicare is there to help cover it, which is something you’ve paid throughout your life in anticipation for that type of care.

On the other side, however, as we age, sometimes we just need help getting out of bed, walking to the bathroom, or using the bathroom. If someone needs help with things like these, they’re not medical. They’re custodial, chronic, or even long-term care needs.

Even with children and spouses as caregivers, these caregivers usually do all they can in the beginning, but there usually comes a time where there is a need for a more professional level of caregiving. That’s where professionals like Brian come in, to look at the documents and dollars, and make sure everything’s in place and that your loved one is getting the best care possible.

For example, according to Brian, the number one document that clients need to have done correctly is what’s called a durable modified power of attorney. This is a crucial document that allows someone to appoint an agent to assist with all their legal and financial matters if they should lose capacity. Without this type of document in place, a family could be forced into a guardianship proceeding, which takes months, and can cost from $5,000 to $15,000 worth of time, which is why Brian and his attorneys make sure all his clients have this in place and that it’s done correctly.


Elder Law vs. Estate Planning


It’s important to note that elder law and estate planning are not the same things. Estate planning is the process of making sure you have a plan for your assets for when you pass away. Elder law, on the other hand, is a subset of estate planning that exists based on laws around seniors as they age — like property law, tax law, social security, and inheritance laws. Elder law, which Brian likes to call “elder care,” focuses on the care of needs. Just like preparing for retirement with a retirement plan, care is also something that almost every aging person will eventually come to need, which is why planning for it is so important.

As a traditional elder law attorney, Brian plans both the care side and the protection side of aging. He works on wills, trusts, powers of attorneys, and helps clients plan for care, while making sure they have all the right documents and asset protection in place.

But according to Brian, that’s the simple stuff. It’s helping families endure the aging transitions and the concerns that come with it that the real complicated work comes in. That’s why Brian has different specialists on staff to help with all the different scenarios – including a geriatric social worker, a board-certified patient advocate, attorney, and more.


The Elder Care Continuum


At his practice, Brian uses something called the elder care continuum, which helps him talk to clients about elder needs. The continuum goes from having minimal or no functional incapacity or mental incapacity, and then progresses into needing some help to needing more help to requiring help.

According to Brian, 99% of the people who walk into his office don’t want to go to a nursing home, but the reality is, sometimes it’s required because of medical issues. While one of Brian’s missions is to help aging clients stay at home as long as possible, there often comes a time when assisted living, nursing homes, or hospice is appropriate for a client’s needs.

About 70 to 75% of those over 65 are going to need some type of long-term care — whether it’s a week’s worth of care or 10 year’s worth of care. That’s why Brian is trying to help families prepare and plan in advance.

According to Brian, in downstate New York, it can be about $25 an hour or $2,000 a week for around-the-clock care. A nursing home can be upwards of $15,000 to $20,000 a month on Long Island or in New York City. These costs add up very quickly.

There are four different ways that care can be paid for:

  1. Cash — This is typically used in the beginning of the care continuum when there’s an informal need for care. But as care becomes more formalized, it usually isn’t a realistic option.                                    
  2. Long-term Care Insurance — However, it needs to be sufficient or robust enough to cover your needs. Many people have a policy, but it doesn’t cover or have enough of a daily benefit to cover home care or a facility.     

  3. Medicare — Medicare can’t necessarily be relied upon for long-term care because it’s not medically necessary. However, Medicare will be involved for intermittent care after a discharge from a facility.

  4. Medicaid — This is the most common way to pay for long-term care. It’s a sister program to Medicare and it’s the poverty level program that people think about.                    


Medicaid has a home care community-based program and they have a nursing home chronic care program. However, Medicaid is all about your assets, your income, and your health. If you want Medicaid, they only allow you to do certain things and only certain people are financially eligible. That’s why Brian helps clients become eligible on the financial and income side within the federal and state law — and the number one way to do this is to shelter assets through an irrevocable trust to make a family or an individual eligible for Medicaid.

There is also a rumor that Medicaid nursing homes aren’t very good, which deters some people from wanting to go on Medicaid. According to Brian, this belief is 100% incorrect, at least within the Tristate area. There are no separate wings in nursing homes for Medicaid recipients. The beds aren’t lumpy. The food isn’t bad. The sheets aren’t worn through. Medicaid recipients receive the same service as the private pay residents, and when you’re applying for a nursing home, facilities are not allowed to discriminate between a Medicaid recipient and a private pay recipient.

How to Know When Your Parents Need Help

Now that the holidays have rolled around once again and you’ll likely be spending more time with family, it’s a good time to start looking for signs that your parents or aging loved ones might be in need of some help.

Some things you can look for include:

  1.   Do they have mail piling up?                         
  3.  Do they have bills piling up?                         
  5.  Is there more medication in the cabinets than they were taking before?                         
  7.  Are the bottles full or empty?                         
  9. What is their home looking like?            

  10. Are they walking a bit slower?                  

  11. Are they dressing appropriately?

In addition, it’s also important to engage in a conversation and speak with them. It’s a great opportunity to acknowledge that your parents are getting older and that you want to make sure they’re protected, and that they’re covered. Many people have concerns about bringing up this topic with their parents, however, if you come at it out of concern, it’s easier to have that conversation than if it’s just about the money. And like so many other things, timing is crucial. The ability to plan in advance gives your family time and choices before there’s a crisis and stress thrust upon you — so make sure you can get ahead on your planning so you and your loved ones can retire right.

If you’d like more information or to learn more about the services Brian offers, check out his official website at tullyelderlaw.com or reach out to him at (631) 424-2800.