Elder Law Toolkit: Benefits, Housing, Capacity, and Elder Abuse Response

Summary. A working kit for elder law practice and for families managing it themselves: a benefits comparison, worksheets for the transfer penalty and the spousal snapshot, and a full set of letters and agreement language from the power of attorney through the estate recovery hardship waiver.

SECTION A — WHO PAYS FOR WHAT

Program	Covers	Does not cover	Key limit
Medicare Part A — SNF	Skilled nursing/rehab after a qualifying inpatient stay	Custodial long-term care, ever	100 days/benefit period; coinsurance days 21–100; observation status disqualifies
Medicare Part A — home health	Intermittent skilled nursing and therapy at home	Round-the-clock care; homemaker services; meals	Homebound + skilled need required
Medicare hospice	Comfort care for a terminal prognosis	Curative treatment for the terminal illness	Six-month prognosis certification
Medicaid — institutional	Nursing facility care, in full	—	Strict income and asset tests; 60-month lookback; estate recovery
Medicaid — HCBS waiver	Home care, adult day, sometimes assisted living	Room and board in assisted living, usually	Capped slots; waiting lists
Medicaid — Medicare Savings Programs	Part B premium, sometimes deductibles and coinsurance	—	Income/asset limits; worth $175+/month
SSI	Cash for aged/blind/disabled with minimal resources	—	~$2,000 resource limit
VA Aid and Attendance	Increased pension for those needing daily assistance	—	Wartime service; net worth limit; 3-year lookback
Long-term care insurance	Per the policy	Per the exclusions	Elimination period; ADL/cognitive trigger; daily cap
Older Americans Act programs	Meals, transport, respite, ombudsman, legal aid	Direct medical care	Funding-limited; no entitlement

The sentence families most need to hear: Medicare does not pay for long-term care. Everything else in this toolkit follows from that.

SECTION B — WORKSHEETS

B-1. Transfer penalty calculation

Line	Item	Value
1	Application date	__________
2	Lookback begins (line 1 minus 60 months)	__________
3	Total uncompensated value transferred in the lookback	$__________
4	Less: transfers within an exception (list below)	($________)
5	Net penalized transfers (3 − 4)	$__________
6	State average monthly private-pay nursing facility rate	$__________
7	Penalty period in months (5 ÷ 6)	__________
8	Penalty start date: later of transfer date or date otherwise eligible and receiving institutional care	__________
9	Cost of private pay during the penalty (6 × 7)	$__________

Exceptions applied (line 4):

Transfer	Date	Amount	Exception claimed	Proof on hand
			Spouse / disabled child / trust for disabled person under 65 / caregiver child / sibling with equity interest / non-qualifying purpose

Caregiver child proof required: physician letter that care delayed institutionalization · proof of two years' residence at the home · contemporaneous care log · evidence of the level of care provided.

Curative options: full or partial return of the transferred funds · hardship waiver where the penalty endangers health, life, food, clothing, or shelter.

B-2. Spousal impoverishment snapshot

Line	Item	Value
1	Date of first continuous institutionalization (snapshot date)	__________
2	Total countable resources of both spouses on that date	$__________
3	One-half of line 2	$__________
4	State CSRA minimum	$__________
5	State CSRA maximum	$__________
6	CSRA = line 3, but not less than line 4 nor more than line 5	$__________
7	Applicant's individual resource limit	$__________
8	Excess resources to be addressed (2 − 6 − 7)	$__________
9	Community spouse's monthly income	$__________
10	State MMMNA (with excess shelter allowance, if applicable)	$__________
11	Monthly income allowance from institutionalized spouse (10 − 9, if positive)	$__________

Addressing line 8: exempt spend-down (home repairs, vehicle, irrevocable funeral, debt payoff, dental/vision/hearing) · spousal transfer plus a compliant single premium immediate annuity · fair hearing to increase the CSRA where income diversion is insufficient · spousal refusal, where the state permits it.

Annuity compliance checklist: irrevocable · non-assignable · actuarially sound over the community spouse's life expectancy · equal monthly payments with no deferral or balloon · state named remainder beneficiary in the correct position · state's specific requirements verified.

B-3. Care cost comparison

Option	Hours/level	Monthly cost	Medicaid coverage	Notes
Home aide, __ hrs/wk		$______	HCBS waiver (waitlist?)	Nights are the constraint
Adult day, __ days/wk		$______	HCBS waiver	Daytime only
Assisted living		$______	Waiver in some states; room and board usually not	Care levels escalate
Memory care		$______	Rarely	Quality varies sharply
Nursing facility		$______	Yes, if eligible	The reliable option
Family caregiving	___ hrs/wk	opportunity cost $______	Consumer-directed waiver?	Burnout is a cost

SECTION C — TEMPLATES

C-1. Power of attorney — the provisions that matter

Effective immediately. This power of attorney is effective upon execution and is not affected by my subsequent disability or incapacity.

Gifting. My agent may make gifts of my property, including to my agent individually, to any person to whom I have made gifts in the past, to my spouse, descendants, and their spouses, and to charitable organizations I have previously supported, in any amount my agent determines, including for the purpose of qualifying me for public benefits, provided that my agent shall act in my best interest and consistent with my known estate plan.

Public benefits. My agent may apply for, contest, and manage any public benefit, including Medicare, Medicaid, Social Security, Supplemental Security Income, and veterans' benefits; may execute and fund a qualified income trust or pooled trust; may request a resource assessment; and may pursue any administrative or judicial appeal.

Trusts. My agent may create, fund, amend, and revoke revocable trusts, and may create and fund irrevocable trusts, including trusts intended to qualify me for public benefits.

Real property. My agent may sell, mortgage, lease, and convey any interest in real property, including my residence, and may transfer my residence to any person to whom a transfer would not result in a period of ineligibility for public benefits.

Retirement and beneficiary designations. My agent may exercise all rights with respect to retirement accounts and may change beneficiary designations, provided that my agent may not designate my agent individually as a beneficiary except to the extent my agent is already so designated.

Digital assets. My agent may access, manage, and dispose of my digital assets and electronic communications, and this instrument constitutes my lawful consent for purposes of any applicable privacy or computer access statute.

Third party reliance. Any third party may rely on this instrument. A third party that refuses to accept it after presentation of an agent's certification may be liable for resulting damages and reasonable attorneys' fees to the extent provided by law.

Use the state's statutory form where one exists; institutional acceptance is the practical constraint, not drafting elegance.

C-2. Personal services (caregiver) agreement — core terms

1. Services. Caregiver shall provide the following services to Recipient: [list — transportation to medical appointments, medication reminders, meal preparation, bathing and dressing assistance, housekeeping, bill paying assistance, companionship, overnight supervision].

2. Schedule. Approximately ____ hours per week, on the following days: __________.

3. Compensation. $____ per hour, payable [weekly/monthly], based on the prevailing local market rate for comparable services, as supported by the attached Exhibit A [agency rate quotes].

4. Term. This Agreement is prospective only and covers services provided on and after [date]. No compensation is payable for services provided before that date.

5. Records. Caregiver shall maintain a contemporaneous log of dates, hours, and services provided, and shall furnish it to Recipient or Recipient's agent monthly.

6. Taxes. Payments are taxable income to Caregiver, who is responsible for reporting them. The parties will address any employer obligations arising from this arrangement.

7. Termination. Either party may terminate on [14] days' written notice, or immediately if Recipient enters a long-term care facility.

Why each term is there. Prospective-only, market rate, written, and documented are the four features that distinguish a legitimate services agreement from an uncompensated transfer in the eyes of a Medicaid caseworker. A lump-sum prepayment for a lifetime of care is the version that gets penalized; hourly payment for logged services is the version that survives.

C-3. Facility site visit script

BEFORE THE VISIT
  □ Federal comparison tool: star rating, staffing hours/resident day
  □ Read the actual deficiency citations — repeats matter more than stars
  □ State survey agency complaint investigations
  □ Call the Long-Term Care Ombudsman: "What do you see at this building?"

ASK THE ADMINISTRATOR
  1. Staffing ratios by shift — days, evenings, nights, weekends.
  2. Aide-to-resident ratio on this hall today.
  3. Staff turnover rate in the last 12 months.
  4. How many residents currently on Medicaid?
  5. If funds run out, can the resident stay — same room?
  6. Is the arbitration agreement optional? (Correct answer: yes.)
  7. Bed-hold policy, in writing.
  8. Who leads care plan meetings and how often are they held?
  9. Registered nurse coverage overnight?
 10. How are behavioral symptoms of dementia managed? (Listen for
     "we adjust the approach" vs. "we medicate.")

OBSERVE
  □ Odor — persistent odor is a staffing problem
  □ Residents dressed and out of bed at 11 a.m.?
  □ Time an unanswered call light
  □ Meal: is anyone helping residents who need help?
  □ Talk to two families in the lobby
  □ Second visit: unannounced, different time of day

C-4. Admission agreement addendum

ADDENDUM TO ADMISSION AGREEMENT

Capacity of signatory. The undersigned signs solely as agent under a durable power of attorney for [Resident] and not individually. The undersigned assumes no personal liability for any charges. Any provision of the Admission Agreement purporting to impose personal liability on the undersigned, or to require a third-party guarantee of payment, is void and is stricken.

Medicaid. Facility confirms that it participates in Medicaid, will accept Resident as a Medicaid recipient upon eligibility, and will not transfer or discharge Resident by reason of a change in payment source to Medicaid.

Bed hold and readmission. Facility's bed-hold policy is attached. Upon expiration of any bed-hold period, Facility will readmit Resident to the next available bed in a semi-private room.

Arbitration. Any arbitration agreement is declined. Admission is not conditioned on agreement to arbitrate.

Funds. Facility shall not hold or apply Resident's personal funds without written authorization and shall provide quarterly accountings.

Conflict. In the event of any conflict between this Addendum and the Admission Agreement, this Addendum controls.

C-5. Medicare expedited appeal request

To the Quality Improvement Organization for [state]:

I request an expedited review of the Notice of Medicare Non-Coverage dated [date] issued to [Resident], stating that skilled nursing services will end on [date]. [Resident] resides at [facility], Medicare number [___].

Skilled services remain necessary because: [describe — wound care, therapy to maintain function and prevent contracture, medication management for an unstable condition]. Coverage does not require improvement. Skilled care necessary to maintain the patient's condition or prevent deterioration is covered, and any determination based on a lack of improvement is contrary to law.

Please confirm receipt and advise of the decision. Services are to continue pending this review.

C-6. Medicaid fair hearing request

I request a fair hearing on the notice dated [date] denying/terminating/reducing long-term care Medicaid benefits for [Applicant], case number [___].

The determination is incorrect because: [state the single clearest ground — e.g., "the agency counted the applicant's residence as a countable resource although the applicant's spouse resides there," or "the agency treated a $48,000 transfer as uncompensated although it was a transfer of the home to a caregiver child who resided there for more than two years and provided care that delayed institutionalization"].

I request a copy of the entire case file and all documents on which the agency relied, in advance of the hearing. I intend to present documents and testimony and to question the agency representative.

I request that benefits continue pending the outcome of this hearing.

C-7. Discharge / transfer appeal

[Resident] received a notice dated [date] of an involuntary transfer/discharge from [facility]. I appeal that determination and request a hearing.

The notice is deficient because: [it does not state a permissible ground under 42 U.S.C. § 1396r(c)(2) · it provides fewer than 30 days' notice · it does not state appeal rights · no safe and orderly transfer plan has been prepared · the stated ground of nonpayment is inaccurate because a Medicaid application is pending].

[Where applicable:] [Resident] was transferred to [hospital] on [date] and Facility has refused readmission. That refusal is an involuntary transfer subject to the notice and appeal requirements, and Facility is obligated to readmit [Resident] to the next available bed.

[Resident] requests to remain in the facility pending this appeal.

C-8. Estate recovery hardship waiver request

I request an undue hardship waiver of the estate recovery claim of $______ asserted against the estate of [Decedent], case number [___].

Basis: [The property at issue is the sole income-producing asset of the surviving heir · the property is the heir's sole residence and the heir's income is below the applicable threshold · recovery would result in the heir becoming eligible for public assistance · the property is a family farm or business that is the heir's primary means of support].

I further note that recovery must be deferred because [a surviving spouse is living / a child under 21 or a blind or disabled child survives / a sibling with an equity interest resided in the home for at least one year / a caregiver child resided in the home for at least two years and provided care that delayed institutionalization].

Supporting documentation is enclosed: [income statements, tax returns, proof of residence, physician letter].

C-9. Adult Protective Services report

I am reporting suspected [financial exploitation / neglect / abuse] of [Name], age ___, residing at [address].

Observations: [dated, specific — "On 12 March, $18,000 was withdrawn from her checking account in three transactions. She does not recall authorizing them. A caregiver hired in January has been added as a signatory."] Suspected responsible person: [name and relationship]. Immediate risk: [describe]. Documents available: bank statements, the added-signatory card, the power of attorney, physician records. My relationship and contact information: __________.

I request confirmation of receipt and a case number.

C-10. Power of attorney revocation and accounting demand

REVOCATION. I, [Principal], revoke the durable power of attorney dated [date] naming [Agent] as my agent, effective immediately. [Agent] has no further authority to act on my behalf. Copies of this revocation are being delivered to [Agent] and to each financial institution and other party known to have received the instrument.

DEMAND FOR ACCOUNTING. As agent under the revoked power of attorney, you owed and owe fiduciary duties, including the duty to act in the principal's best interest, to keep the principal's property separate, and to maintain records of all receipts, disbursements, and transactions.

Within thirty (30) days, provide a complete accounting of all transactions conducted on the principal's behalf from [date] to the present, including: all account statements; all transfers to or for the benefit of yourself or any relative; all gifts made; all property sold, transferred, or encumbered; all compensation taken; and copies of any documents executed on the principal's behalf.

Failure to account may result in a court petition to compel an accounting and to surcharge you for any losses, together with interest, costs, and attorneys' fees to the extent provided by law.

SECTION D — PRIMARY AUTHORITY

42 U.S.C. § 1396p — liens, estate recovery, and the 60-month transfer lookback.
42 U.S.C. § 1396r-5 — spousal impoverishment: the snapshot, the CSRA, and the MMMNA.
42 U.S.C. § 1396r — Medicaid nursing facility requirements and residents' rights.
42 U.S.C. § 1395i-3 — Medicare skilled nursing facility requirements.
42 C.F.R. Part 483 — implementing regulations for long-term care facilities.
42 U.S.C. § 1382b — resource rules followed in many Medicaid determinations.
42 U.S.C. § 3001 et seq. — the Older Americans Act and the Long-Term Care Ombudsman program.
42 U.S.C. § 1397j et seq. — the Elder Justice Act.
Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006) — the anti-lien provision limits state recovery to the medical portion of a settlement.
Wos v. E.M.A., 568 U.S. 627 (2013) — an irrebuttable statutory allocation is preempted.
Kindred Nursing Centers L.P. v. Clark, 581 U.S. 246 (2017) — the FAA preempts a state rule singling out arbitration agreements.
Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (2017); Uniform Power of Attorney Act (2006), as adopted.