Perfect World Versus Real World

By elder care attorney Rick Law, founder and managing partner at the multi-generational law firm of Law Elder Law.  Home of the Estate Planning Center at Law Elder Law, senior advocates in Western Chicagoland in Illinois.

In a perfect world, you (the client) will approach your elder law attorney before providing any care for your elderly parent who is suffering from Alzheimer’s disease and give the lawyer the opportunity to create a personal-care contract for them.

Unfortunately, it is much more typical that people will wait and tell their lawyers that they have been caring for their mother for the last several months free of charge, and now their mother’s Alzheimer’s is getting worse and they need to spend more time caring for her.

Perhaps they need to cut back their hours at work. Whatever their situation, they have now realized that they need to have their mother pay them for the care.

While it is much easier to draft the personal-care agreement prior to the start of the care, your lawyer can still draft the agreement after care has started. The key is to demonstrate an increase or escalation in the care needs of the senior.

However, the personal-care agreement can only be for services to be given commencing from the date of that agreement. It could be considered fraud by the state Medicaid department to create a personal-care agreement for services that had originally been rendered gratuitously. A personal-care agreement cannot be predated.

It can be very difficult for the caregivers if they first performed services for free and later request payment. In these situations a written agreement is almost certainly required.

A properly drafted personal-care agreement is required as the foundational document to rebut accusations of elder abuse within the familial-care arrangement. Proper and timely bookkeeping is also required—and unfortunately is the Achilles’ heel of many of these contracts.

It is very common that the parents may need a higher level of care than their child can provide. When one or both of them go to a nursing home and then apply for Medicaid, the parents account will be scrutinized and audited by the state. If there was no personal-care contract in place between the parents and the child clearly describing the care to be provided and the compensation to be paid, many states will consider the transfers as non-allowable which may in turn create a penalty period of ineligibility for nursing home Medicaid benefits for the affected loved one.

This is why it’s so critical to seek the counsel of a qualified elder law attorney before taking action.  Your lawyer can provide appropriate written advice and counsel, so as to avoid being liable for creating a personal-care agreement relationship that led to a denial of nursing home Medicaid benefits.

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 has been named the #1 Illinois elder law estate planning attorney for the past 8 years in a row 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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