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"Is It Legal?" "Is It Ethical?"
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Once in a while, when we advise a client that, for example, she can become immediately eligible for Medicaid home care by transferring her money and property to a trust, the client will ask: “Is it legal?” Or, sometimes her question will be: “Is it ethical?”
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| The first question “Is it legal?” is easy to answer. Yes, it is legal. We would never recommend a course of action to a client that is not entirely legal and proper. |
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The legal strategies that we employ as Elder Law attorneys are permitted under existing laws, rules, and court decisions. Many of these strategies were developed in public forums, sometimes after discussion with the government employees who administer the public benefit programs involved. These same strategies are taught and discussed at meetings of the New York State Bar Association, the National Association of the Elder Law Attorneys, and in a variety of Continuing Legal Education (CLE) courses for attorneys.
In addition, many of the strategies employed by experienced Elder Law attorneys are guided by the tax laws, which frequently impact transfers of money or property, or the creation of trusts.
Policy makers and all branches of the government – executive, legislative, and the courts – are well aware of the opportunities available under current laws for Medicaid planning. The Deficit Reduction Act of 2005 (enacted on February 8, 2006) is a good example of lawmakers’ efforts both to control abuses, and to leave open significant avenues for Elder Law attorneys to help their clients obtain Medicaid benefits.
So, yes, we can say with confidence, “it is legal.”
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| Some people might consider the second question, “Is it ethical?” more complicated. |
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We do not. To the contrary, as attorneys, it is our professional obligation to do the best that we can for our clients. In concrete terms, this means listening to our clients to understand their goals, explaining to our clients all of their options and advising which options are best calculated to achieve their goals, and then executing the option that each selects.
If a client needs home care or nursing home care, and if that client would prefer to have the “ruinously expensive” costs of such services paid by Medicaid, it is our duty as attorneys to devise, if possible, a proper strategy to obtain Medicaid benefits for that client.
For people who have worked hard, paid taxes, and saved all their lives, we see nothing wrong in their trying to hold onto their home and at least some of their life’s savings. Should a citizen feel bad, or question her own ethics, about claiming a benefit to which she is entitled? We think not. Should a citizen avoid setting up a trust, or engaging in some other lawful strategy, that would permit her to obtain Medicaid benefits? Again, we think not.
Of course, these are personal decisions, and we would not argue with a client who does not wish to pursue a strategy designed to obtain Medicaid benefits. However, nearly all of our clients are interested in obtaining available benefits, and we do our best to help them.
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Copyright © Lamson & Cutner, P.C. |
9 East 40th Street, New York, NY 10016 |
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The New York Elder Law lawyers at Lamson & Cutner, P.C. encourage clients to call from the New York Metropolitan Area, including New York City's five boroughs of Brooklyn, Manhattan, Queens, Staten Island and The Bronx to discuss a Health Care Proxy, Advance Directive or NY Living Will.
The Elderly, Senior Citizens, the Disabled and Infirm, the Aging, their family members and friends from all Manhattan communities; from the Upper East Side to the West Side, from Washington Heights to Downtown, from Harlem to Midtown, from Chelsea to Chinatown, and from the Village to Soho are encouraged to contact an Elder Law attorney at Lamson & Cutner to plan for you, your family member or friends future. |
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