By Rajiv Nagaich, CAP, Fellow
Editor’s Note: This article originally appeared in the July 2023 edition of NAELA News Online
Ultimately, outside of the legal work clients seek us out for, the core issue for every retiree is housing — even if they do not realize it during the planning stages.
Every elder law attorney I know is a smart, hardworking individual who wants to do right by his or her clients. To do so, we nurture our skills and use them to counsel clients on how to plan. In the process, we create wills and trusts, powers of attorney, living wills, advance directives, and similar documents. The hoped-for outcome is for our clients to have made life easier for those who will need to manage the client’s affairs when the client becomes ill or dies, while also protecting assets from uncovered care costs. However, outside of the legal work the client does with us, they harbor being put into a nursing home as a big fear in retirement, but seldom will explore planning options.1 This makes the client’s hopes a housing issue. And this article explores that issue.
Through the estate planning documents, the attorney and the client both expect to have laid down a path for the named fiduciaries and involved loved ones to follow, so that the client’s life will be closer to their expectations while also not becoming a burden. The documents are built on the assumption that the family will know what to do when the time comes.
Nothing could be further from the truth.
Research establishes that though a large majority of Americans want to be able to live out their lives at home, only 30% of Americans achieve that goal.2 That means your clients, armed with all the necessary legal documents, have a 70% chance of spending their last days in a hospital, hospice house, nursing home, group home, or another place of care — a place they were likely hoping never to end up. This cannot be trumpeted as successful planning by elder law attorneys, can it?
The question to be explored is whether it is even possible for one to plan to avoid a move even when faced with incapacity. For that, I will point you to the Medicare rules for hospice coverage. If you have less than six months to live, you qualify for hospice.3 Hospice will help you access care at home, if that is your desired goal. Hospice will send a professional to the patient’s home and determine what will be needed to help the patient access care at home.4 It has been my experience that a checklist will be created: a hospital bed, respirator, grab bars, inflatable bathtub, and other adaptive equipment to allow the patient to access care at home. Hospice will provide a nurse to administer medications, a bath aid to look after hygiene needs, and a counselor to counsel the family through this difficult time. Everything will be arranged. The system will also give each family member an 800-number to call any time day or night. The family will never be without resources. Most family members will be able to use these services to help their loved one live out their life at home. Unfortunately, this service is available only if you have less than six months to live.
So, what happens when someone has six months and one day to live? The discharge nurse will want to know “which rehab center should we send your loved one to?” Why this outcome? Because the powers of attorney the attorney drew up assumed the family will know about the realities of the healthcare system and figure “it” all out. Figure what out? That question is generally not the attorney’s concern. This represents a gap in a client’s plan.
How about we as elder law attorneys recognize that the single biggest fear retirees in America face (including retired elder law attorneys) is that, should they fall ill, they might be moved from the familiarity of their home and put in a “safe” place where they will know no one, will be told what to do, and will have no control over their life.5 Hardly any of our clients want to end up in institutional care or become a burden to loved ones. Recognizing this reality, we should make it our mission to help our clients look at all the alternatives they have when it comes to housing issues and help them make a decision based on the goal that when they fall ill, the plan is to have the care come to them — without family members becoming unpaid caregivers, and without the need for depleting assets in the process.
How? We do this by learning from hospice and then counseling clients on what is needed for them to be able to live out their life at home, as well as educating the named agents on the steps needed to make this outcome happen without becoming the unpaid caregiver in the process.
Here is a glimpse of how to approach the issue.
First, educate your client about their housing options. Your clients really only have two options: age in place in the community (by themselves or with a family member) or move to a retirement community.
Expect the client to want to age in place — away from a retirement community. If that is the case, help your client explore whether their house is age-friendly (barrier-free, one story, in a safe neighborhood, close to services, and close to named health care agent); explore and plan for the financing of care costs (long-term care insurance, reverse mortgages, Medicaid or VA, plan to keep costs down by hiring directly and avoiding agencies, etc.); and then ensure that the named agents understand and buy into the plan by holding a family meeting. The key is getting the client to visualize lying in bed and not being able to self-advocate. Find out what outcomes they desire and then review whether everything is in place to make that outcome come true. Establish that aging in place cannot happen without the active involvement of family, meaning they cannot say they do not want to be a burden. Proper planning can minimize the burdens, not eliminate them.
If your client does not wish to be a burden, then the option is to move to a retirement community that offers written contractual assurance that once they move there they will never have to move out — even if they run out of money and even if their condition worsens. These communities are referred to as Continuing Care Retirement Communities (CCRCs) or Life Plan Communities.6 Moving to a CCRC setting will ensure that the client will not be a burden on loved ones, though living in these communities is expensive and will thus reduce the size of your clients’ estates. This planning will take time. It cannot be a quick analysis and plan.
The decision is not that hard to make when you are able to help your client realize that it depends on a simple analysis: is it more important to leave as much of the estate to the family even if it means becoming a burden to them, or is it more important not to be a burden? This will likely be the hardest decision the client will make during their work with you.
Ultimately, outside of the legal work clients seek us out for, the core issue for every retiree is housing — even if they do not realize it during the planning stages. If we help our clients plan their housing future, we will be meeting a need that no other professional in the retirement planning space is addressing. We will add value to our service offering and become the go-to professional for retirees in our communities. We have an opportunity to learn how to counsel clients so we can do more than just protect their wealth. We can show them how to use that money to access care in a setting of their choosing (at home, for the majority of Americans) without going broke and without recruiting family members to serve as unpaid caregivers in the process.
1. Kourtney Liepelt, Aging Adults Fear Nursing Homes But Don’t Discuss Alternatives, Senior Housing News (December 9, 2015), https://seniorhousingnews.com/2015/12/09/aging-adults-fear-nursing-homes-but-dont-discuss-alternatives/.
2. AARP, AARP Survey Shows 8 in 10 Older Adults Want to Age in Their Homes, While the Number and Needs of Households Headed by Older Adults Grow Dramatically (November 18, 2021), https://press.aarp.org/2021-11-18-aarp-survey-shows-8-in-10-older-adults-want-to-age-in-their-homes-while-number-and-needs-of-households-headed-older-adults-grow-dramatically. Melissa W. Wachterman, MD, MPH, et al., Where Americans Die — Is There Really “No Place Like Home”?, 386 New England Journal of Medicine 1008-10 (2022), https://www.nejm.org/doi/10.1056/NEJMp2112297.
3. Medicare.gov, How Hospice Works, U.S. Centers for Medicare and Medicaid Services, https://www.medicare.gov/what-medicare-covers/what-part-a-covers/how-hospice-works (accessed May 30, 2023).
4. HospiceWise, What Is Hospice Care At Home?, https://hospicewise.org/hospice-care-at-home/ (accessed May 30, 2023).
5. M. L. Nestel, 92-Year-Old Mom Fatally Shoots Son When He Threatened to Move Her Into Assisted Living: Authorities, ABC News (July 4, 2018), https://abcnews.go.com/News/92-year-mom-fatally-shoots-son-threatened-move/story?id=56362244.
6. AARP, How Continuing Care Retirement Communities Work (January 27, 2022), https://www.aarp.org/caregiving/basics/info-2017/continuing-care-retirement-communities.html.