Escalation of Care Required

By Rick Law of the Estate Planning Center at Law Elder Law.  Rick Law and daughter attorney Diana Law are the lead attorneys at the multi-generational law firm of Law Elder Law. Serving seniors and their families through elder law services, estate planning, guardianship, probate, wills and trusts, and much more in Kane, Kendall, DuPage, Will and Cook counties in Illinois.

A client walks into a lawyer’s office and says, “I have been going over and taking care of my elderly mother for the past few months for a few hours a day. Now she’s been diagnosed with Alzheimer’s, and this is going to take up a lot more of my time and energy. I may need for her to move in with me and my husband, and I am going to need to start charging her. I want to set up a personal-care agreement for her.”

In this situation it is not too late to create a valid personal-care agreement even though care has already been provided for free, because at this point the client is saying that the care needs have intensified and it’s time for them to start being paid.

The key for Medicaid eligibility is that someone can never be compensated for care that was being provided gratuitously. In the Medicaid context, care provided without a properly drafted and medically justified personal-care agreement is presumptively gratuitous. For example, the parents lived with their son for two years and he did many things for them gratuitously, and then suddenly he says he wants to receive payment. He says that not only does he want to receive payment going forward, he wants to be compensated for all that previous care.

That will be a big issue for Medicaid eligibility for the affected loved one, because a retroactive payment will be viewed as a gift and could create a substantial period of ineligibility for the person needing Medicaid.

The reality is that a lot of times people incrementally get into these situations. So if you the individual seek out lawyers early in that process, your lawyer would probably want to have them set up a low-level personal-care agreement.

As the care increases, so would the amount that caregivers are being paid proportionally to the amount of hours they’re working over time. An elder law attorney will have ancillary documentation in place to validate the changes of care level needed.

If your loved one has memory problems and you’re afraid of the consequences that may bring, give our office a call today at 800-310-3100.  Your first consultation is absolutely free.  We’ll let you know what steps you need to take, right now, to protect yourself and your family.  Call now.


Rick L. Law, Attorney, Estate Planner for Retirees.

Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine,, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future.  Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.  Call 800-310-3100 for your free consultation now!

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