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The Elder Law Attorney and Mrs. Baker


elder law case

Rose Baker had been married to her husband, Joe, for 59 years when she first came to me. They had lived their lives together in Massachusetts and had retired to South Florida in 1992. When I came out of my office to greet Mrs. Baker in the reading room (we don’t have a “waiting” room), her eyes were puffy, red and she was clutching a wrinkled tissue in one hand. I brought Mrs. Baker right back to my office where she immediately related her story to me. Bottom line: Joe is ill and in the nursing home and she, Rose, is depressed, feeling guilty, scared and lonely. On top of it all, she tells me, she is worried about being poor.

She expresses guilt and remorse for even talking about money because, she tells me, she should be at the nursing home taking care of what is really important — her husband, Joe. She is crying again but trying not to. She is embarrassed. I am leaning in from my desk, trying to convey assurance so I can make her feel better. Making her feel better is all I really want to do.

Rose is so obviously overwhelmed with all that is going on in her life. She is talking at once about the doctor at the nursing home, Joe’s most recent hospitalization, her daughter who is disabled by reason of multiple sclerosis, her son who cannot do enough but lives “back home” in Massachusetts, the electric bill being higher this month because it is so hot, her three CDs which total $90,000.00, the stock which used to be worth $140,000.00 but is now worth only $100,000.00. She is talking about how Joe used to be an important teacher and how good he was to her and the kids. She is crying off and on. Mrs. Baker reminds me of my grandmother. I feel bad for her but am used to this.

I take control of the meeting by asking her some questions and filling out my intake form. I do this myself instead of having a staff member do it because I use these innocuous questions to make small talk with my clients. It helps them because they are often nervous and scared, just like Mrs. Baker. I talk with Mrs. Baker and calm her down a little bit. I write down some notes of my impressions and the answers to the questions on my form. I try to use her own words wherever possible.

Mrs. Baker has two children; a daughter named Hillary and a son name Stephen. Hillary is a “good girl,” suffers from MS and does not “deal well with sad things.” Hillary calls once each week but Mrs. Baker does not want to “burden her.” Mrs. Baker last saw Hillary eight months ago. It is hard for Hillary to travel because of her MS. Stephen is a teacher, having followed in Dad’s footsteps. Stephen is a big help to Mrs. Baker. He was just down for ten days and will be returning next month. Because there is no school in summer, Stephen has some flexibility for the time being.

Mrs. Baker is scared about the money. She just paid the nursing home $5,700.00 for last month alone. “We never spent money like this,” she says. She tells how she and her husband saved and saved their money; how they never had two cars, how Joe “taught me how to put money away for later.” She tells me how Joe does not even recognize her sometimes and she starts crying a lot now.

Even though I know I can help Mrs. Baker, I feel frustrated that I cannot do more. I want her to stop crying. I want her to be happy. I want her to feel secure again. I strong-arm my emotions aside and stay with my lawyerly, authoritative and assuring pose. I want her to feel that I can help her so she will feel some precious relief.

I say, “Mrs. Baker, when you leave here today, I want you to leave with a weight taken off of your shoulders. I cannot fix all of the problems, but I can remove the money problem from your worries.” She exhales some years of worry and her shoulders visibly relax.

“How?” She is wobbling her head and looks incredulous. Then she adds, “The money is not important though.” Even in her excitement to maybe have found some help, she feels guilty that we are talking about “money” when her husband is suffering so much.

“Mrs. Baker,” I continue, “Money buys care. I cannot make your husband all better. Noone can. But what we can do is maximize the use of your savings so that he — and you — can get better care. We do this through a process of protecting your savings while accessing any and all benefits that will help you and your husband.”

I am very cool, very assuring. Inside, I want to jump up and hold Mrs. Baker and cry with her and tell her everything will be alright. But I know that I must convey detached professionalism so Mrs. Baker feels safe.

I am a healer at heart. My undergraduate degree is in religion and I had once planned to go into the clergy. I satisfy this need now by being an Elder Law Attorney and by doing magic shows. Magic makes people feel good and is a lot easier than Elder Law but I have learned that being a magician and being an Elder Law Attorney take very similar skills. My clients and friends kid me by saying that in one act, I make handkerchiefs disappear and in another act, I make assets disappear. I think this is funny too but it also makes me feel uncomfortable.

Some people do not understand what I do as an Elder Law Attorney. Some people think that Medicaid planning means taking rich people and putting them on the public dole. This is not true.

Mrs. Baker is a composite of my average client — middle-class to upper middle-class people who saved and saved and saved for retirement only to be beaned by a long-term care system that has spiraled out of control. What the government wants is for Mrs. Baker to “spend down” the family savings and then, when there is little or nothing left, Medicaid will help pay for the nursing home. The problem, of course, is that Mrs. Baker then has little or nothing left to pay for those things that Medicaid will not cover. All of their efforts in saving for a lifetime mean nothing. They get no benefit from having saved. Indeed, in the room right next to Mr. Baker, a lady who never saved a penny is receiving the same care on Medicaid. The system is broken.

What is more is that the care Mr. Baker receives is, in my opinion, substandard, even at the “good” facilities. To remain profitable, nursing homes pay very low wages and therefore attract only those people who are willing to do hard and intensely personal work for very little money. The turn-over rate for staffing at many nursing homes is very high. Even the better-paid administrators are well known to shift from company to company. The government is not helping enough. The Medicaid reimbursement rate is too low. Nursing homes are regularly filing for bankruptcy protection. Cost-cutting measures mean a greater likelihood of abuse and injuries of nearly-helpless nursing home residents. The structure of government programs still force people into nursing homes rather than paying for assisted living or home care; a costly mistake for our government and for our society. For all of these reasons and more, I know that maximizing the client’s own resources is critical.

Through proper planning, I know I can show Mrs. Baker how to protect all or most of the family savings. I can show Mrs. Baker how she can qualify Mr. Baker for Medicaid while still getting the benefit of their savings. By using their own dollars and the government’s dollars, Mr. Baker (and Mrs. Baker) will be able to afford more and better care. This can make all the difference.

The New York Court of Appeals (that state’s highest court) put it well when it held that “[no agency of the government has any right to complain about the fact that middle class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential, medical treatment.'”

Mrs. Baker is every client who has walked into my office full of grief, guilt and fear.

America is a very great nation but we should not kid ourselves by pretending that we are on the moral high ground when it comes to taking care of our country’s parents and grandparents. Without Medicaid planning, Mrs. Baker and her husband have been almost as abandoned as the elderly Eskimos who were once set adrift on ice floes.

I do not think I am exaggerating the poor state of long-term care. I will not be too graphic and I would think that each of you can relate consistently tragic details of poor care, but if you think the ice floe analogy goes too far, consider this: Is it morally proper, considering our means, to have people crying out to be taken to a toilet? Is it right to regularly deliver the dinner tray to Mr. Baker’s bed and leave it there, knowing that he cannot eat without assistance — the tray then being thrown away without being touched and no thought being given to Mr. Baker’s starvation? Is it right to diaper a continent adult so the staff does not need to take him or her to the bathroom? These are just a few things seen everyday with millions of nursing home residents in America. What are we becoming? Is not a society judged by how we take care of our children, our sick and our elderly?

Medicaid planning might not solve these “big” issues but for the individual person who comes to me, it can mean the difference between that person’s (or their loved one’s) life and death and it almost always means a higher quality of life for one’s last weeks, months or years. There are some who may argue the public policy of burdening the tax base for long-term care. For me, with each individual person or family who comes into my office, I can care only about them and making things better. I know that more money means more care. I know that I can show my clients how to protect their savings and access Medicaid to get better care. I know that what I am doing is not only legal but is morally just.

Mr. and Mrs. Baker worked hard for their money. They helped to build this country. Whether we serve as Elder Law Attorneys, guardians or in another helping capacity, we should feel good about doing all we can to make Mr. and Mrs. Baker’s lives better. That is what gives me pleasure and I hope you can and do feel the same.

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