Last month when we were visiting a local assisted living facility on National Healthcare Directives Day, I spoke to a resident who identified himself as a war-time veteran. He was reading our brochure on veterans’ pension benefits. I asked him if he had looked into the possibility of his qualifying for those benefits. He said that he had, and that he had even spoken about it with a representative of the VA who had visited the facility. Unfortunately, he told me, the VA representative had told him that he had too much in assets to qualify.
A few weeks earlier I had spoken with a woman whose mother was exhausting her life savings, month by month, paying for nursing home care. She told me that eventually her mom would run out of money, and then she would have to go on Medicaid. I gently asked if she was interested in helping her mother protect some of her remaining life savings, so that she wouldn’t end up flat broke and trying to somehow get by on a $30 per month Medicaid income allowance. She told me she had spoken with the social worker at the nursing home about that. The social worker had told her that it was way too late to do anything, because it was against the Medicaid rules to give away assets once you’re in a nursing home. She was told, “You needed to do that at least five years before applying for Medicaid.”
More recently, I spoke to a woman whose husband’s home care needs were escalating to the point that she was exhausted, down in the back, and feeling at the end of her rope. She and her husband felt trapped. They knew he needed more care than she could provide, but they were greatly worried about the cost of either professional home care or nursing home care. They didn’t have a lot of money in the bank. Much of their net worth came from rental properties they had purchased long ago. Unfortunately, she told me, their accountant had told them, and their family attorney had confirmed, that they couldn’t sell any of those rental properties without paying a bunch of capital gains tax. And, of course, even that assumed that the properties could be sold for a fair price in a down market.
The people involved in each of those situations had a serious problem. But it wasn’t the one they thought they had. Their problem was not that they couldn’t qualify for help to keep from going broke paying for their care. It was that they had spoken to people who were only able to give them answers to their questions, and not to offer solutions to their problems.
It’s much easier, and much more straightforward, to give an answer than to offer a solution. It doesn’t take much time or a great depth of knowledge to tell people that some particular law or rule stands in the way of their getting the help they need. After all, you have given them a true and honest answer, and nobody can blame you for doing that. And if that’s all you know, it’s the only honest answer you can give. The only problem is, they still have a problem, and you haven’t helped them to solve it.
It’s much more difficult, complicated, and time-consuming to find a solution. It’s not nearly enough to “know the rules.” You need to know whether there are any exceptions to the rules, and you have to develop detailed information to find out whether one of those exceptions might apply in a particular situation, and if so how. In many instances, the solution doesn’t just jump out at you. You need to hunt for it, and to be able to find it.
To do that, you need to be able to “think outside the box.” If a law or rule keeps you from getting something done in one way, is there another way that it can be accomplished? If you think of laws as “road closed” signs, you need to know all of the back roads that may enable you to zig here, zag there, and still make it to your intended destination. Sometimes you need to be willing and able to ask, and answer, the question “If we can’t do that, is there something else we can do that will produce a solution that, while not perfect, is still a lot better than doing nothing?”
You also need to be both confident and fearless. Anyone who suggests a unique or unusual strategy for accomplishing something that others have said can’t be done is putting his or her credibility and reputation on the line. If it doesn’t work, everybody knows whose bad idea it was. None of us likes steering someone in the wrong direction – especially lawyers, who can face malpractice liability exposure for giving wrong advice. If you’re going to have the guts to tell someone “Trust me, this will work,” you need to be saying that from a depth of knowledge and understanding that gives you the confidence to make that statement.
You also need to have a keen realization of the consequences of what you are proposing, the ability to anticipate potential problems and hazards that may be associated with it, and the ability to develop what needs, in many cases, to be a sophisticated and nuanced solution in order to avoid those potential problems. A “solution” that causes other problems can be dangerous. A plan that fails to anticipate the potential problems it might cause can end up doing more harm than good.
Finally, if you are charging fees for your advice and planning, as lawyers do, then you better feel certain that you can deliver the goods, because you’re doing nothing less than asking people to put their money whereyour mouth is. Elder law clients are like strangers in a strange land, dealing with difficult circumstances they have probably (hopefully!) never had to deal with before, facing the potential loss of their life savings and a very complicated set of rules that can stand in the way of their efforts to keep that from happening. If you’re going to tell them “Trust me,” then you need to be prepared to earn that trust.
I am. I’m just not willing to settle for answers, especially when the answer is “No” and it needs to be “Yes.” That’s not my job; my job is to help people find solutions to their problems. I’m proud and happy to say that I’m very good at it. If there’s a solution out there, I’ll find it and we’ll help our client make it work. If there’s a “simple” solution that can protect part of a client’s life savings, but a better solution that will protect even more, I’ll find that better solution.
I’m proud that I have earned the respect of other members of my profession for that ability. I’m proud that a large number of our clients come to us upon referral from fellow attorneys. I’m proud that I am one of a small number of attorneys across the country (the only one in Illinois south of Peoria) who have earned national board certification in elder law from the National Elder Law Foundation, the only organization accredited by the American Bar Association to certify practice area specialization in the field of elder law (neither the supreme court nor the bar in Illinois or Missouri reviews nor approves such specialist certifications). I’m proud that the Missouri chapter of the National Academy of Elder Law Attorneys (NAELA) recently chose me to give the presentation on “sophisticated planning techniques” at a statewide continuing education seminar for lawyers. I’m proud that our seminar on “The Top 10 Secrets Non-Elder Law Attorneys Should Know About Elder Law” has been approved for continuing education credit for lawyers in both Illinois and Missouri.
But those aren’t the things I am most proud of. What gives me the most pride, and greatest joy, is that I am frequently able to help clients who really need my help, in circumstances in which other people – government employees, people who work at long-term care facilities, accountants, and even other attorneys – have told them they couldn’t be helped, or that it was too complicated, or that the help would cause more harm than good.
It’s not always easy, and it’s not always fun. But it can make a real difference in the lives of the clients we are privileged to serve, and that’s what matters most.
Sincerely,
Wes Coulson
