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  • Writer's pictureAlan D. Feller, Esq.

Planning Long Term Care When Both Parents Are Ill

A parent’s sudden illness is a destabilizing event which shakes the earth beneath our feet. As difficult as this singular event is, imagine the impact of a concurrent illness affecting our other parent. There are well utilized legal and financial planning paths for married couples with one ill spouse. New York’s Medicaid eligibility rules provide protections for marital assets through the exemption of spousal transfers and the allowance for spousal refusal to shield the non-ill spouse’s assets and income. When both spouses are facing prolonged medical issues the planning becomes more granular, more technical, more difficult.

The elder care professional should have a sense of the care trajectories for both ill spouses. If one spouse is ill but may only require a few hours a day of home care while the other spouse suffers from a severely debilitating illness which would most likely result in placement in an institutional long term care facility then the legal planning should reflect this reality. Institutional or Nursing Home Medicaid has a five year look back with penalty periods while Home Care and Assisted Living Medicaid do not. For example, spousal transfers are exempt for Medicaid eligibility purposes, but the second transfer from a spouse to a child would be penalized in a Medicaid nursing home application but not penalized in a Medicaid home care application.

When both parents are ill, the caregiver and the elder care professional must maintain some planning flexibility. Irrevocable Trusts in a Medicaid context are valuable tools to protect assets while creating an orderly estate plan. In New York, Irrevocable Trusts may be revoked if all parties to that trust agree to revoke the document, but when both spouses are ill the likelihood of having one essential trust party die before revocation is a concern in a dual spouse Medicaid situation. Sometimes, following spousal transfers, direct transfers to children and other family may be more appropriate to allow for simpler Medicaid planning where there is greater uncertainty as to the illness progressions for both spouses.

The other major hurdle when both parents are ill involves logistics. If both parents have similar non-institutional care trajectories then a joint Medicaid home care application can be filed and home health aides can be made available for their care. This places greater burdens on the children or other caregivers to oversee care for both parents as opposed to having one healthy parent to manage care for the other from inside the home. When care trajectories start to diverge then another set of decisions come into play. Should both parents reside in the same assisted living facility even though one parent is more independent while the other requires greater aid? Defining quality of life together as a couple compared with the individual’s life quality is a tricky arithmetic.

The unique planning requirements for two ill spouses necessitates a fluid response protocol along with an understanding of the couple’s underlying dynamics and personalities. Protecting the family’s material assets must be a priority. But ensuring the family’s well-being and care management is the still most important part of the job.

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