A living will is a document that the client may execute providing specific directions to his or her physician, family, and designated health care agent concerning his or her wishes about medical treatment that the client does or does not want to have. The living will may be the appropriate document to address the client's feelings regarding life-sustaining treatments and medications, depending on the state. When assisting clients in preparing advance directives, you should make an effort to ascertain whether the advance directives will remain valid should the client move to another state. The most difficult topic to raise with elderly clients and their families is the issue of nursing homes and their costs. While discussions of nursing homes can be heart-wrenching, it is more important to discuss the possibility and costs associated with nursing homes than it is to explain estate taxes.
Nursing homes have a great impact on clients and their families, both financially and emotionally.
Medicaid is the federal program that pays for the long-term care costs typically associated with nursing homes, not Medicare. While Medicaid may pay for nursing home costs, it remains necessary for the lawyer to help clients and their families understand and plan for long-term care. Recent federal legislation makes it a crime for a lawyer to counsel clients for a fee regarding the transfer of assets for the purpose of qualifying for Medicaid if it results in a period of ineligibility. In other words, the statute criminalizes protected speech regarding non-criminal conduct.