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Virginia Medicaid – Why Consult an Attorney About Medicaid?

By Attorney Susan I. Jean

October 15, 2017

Many people are reluctant to consult attorneys for long term care planning because:

  • the cost of consulting with an attorney is seen as significant.
  • qualifying for long term care benefits is seen as a non-legal matter that should be straight-forward and not require legal assistance.
  • care facilities may offer to prepare benefits applications for residents for no charge.
  • they have faith that the eligibility worker will accurately review their application.  
  • they are uncomfortable seeking assistance from a benefits program.

Let’s discuss each concern about legal representation in turn.


There is no getting around it.  Lawyers can be expensive.  Similarly, long term care costs are high and rise regularly.  A delay in seeking assistance with long term care planning can result in a delay in eligibility for benefits.  A lifetime of hard work and saving is at stake, as is the elder’s hopes to help future generations.  In the end, consulting with an attorney is less costly in time, stress, and usually money, than waiting until the last moment to investigate available benefits and design a plan to access them if doing so makes sense.

Benefits as Law

Certainly, public benefits should be available to those who qualify without having to resort to hiring an attorney.  Unfortunately, this aspiration and the reality of the Medicaid and Aid & Attendance rules are far apart.  The eligibility requirements are established in laws, regulations, and/or bulletins and practices that can be difficult even for attorneys to fathom unless they practice regularly in the field.  Your case may be simple and may not require the depth of knowledge needed to plan for a more complicated estate.  However, you cannot be sure of that without first meeting with an attorney with expertise in government benefits planning.  

Care Facilities Provide Application Services

Yes, many care facilities provide application assistance at no charge.  For those who have spent down and are currently eligible for benefits, this service may be all that is needed.  However, for those who want to preserve assets, facility workers are not trained to identify planning opportunities and to assist with implementing those strategies.  Similarly, in instances where past actions may prevent eligibility (gifting? family transactions?), proper planning can prevent disqualification from benefits.  Finally, government eligibility workers are overworked.  It may be necessary to be willing and able to appeal the lack of action on an application.  Your facility worker will not be able or willing to pursue an appeal to expedite an eligibility determination.   

We have seen countless examples of incomplete or improper advice leading to significant lost planning opportunities for our clients, no matter how well-intentioned the advice giver may be.  For example, the facility may be focused on Aid & Attendance and not consider Medicaid impacts, or may be focused on Medicaid and may overlook the ability to qualify for Aid & Attendance.  They may not recognize how early planning may benefit the resident, leading to a happier stay and less stress for all.

Reliance on Accuracy of the Government Eligibility Workers

We trust our government eligibility workers to “get the answer right,” and in many cases they do.  However, we have also seen cases where a well-intentioned but overburdened eligibility worker misreads the application, or misinterprets the law.  Even if you are eligible for long term care benefits, your application may be denied.  If you met with an elder law attorney, you should be armed with the right answer, and recognize errors if they occur.  After all, if you don’t know what the answer should be, how do you know if it is wrong?  

Long Term Care Benefits as Welfare

Aid & Attendance exists to provide an income supplement to qualified veterans or their surviving spouses whose income is reduced below specified levels because of unreimbursed medical expenses.  If the applicant meets all eligibility criteria, he or she qualifies for assistance.  In many cases, this assistance may mean the difference between being able to pay for assisted living or nursing home care.  

Medicaid serves a number of different populations, including poor recipients of Supplemental Security Income (SSI) and some individual with disabilities who receive Social Security Disability Insurance (SSDI).  No one would argue that when Medicaid was created it was meant to be the main system of paying for long term care for older Americans.  But in the absence of any other program to fill that need, Medicaid has become the nation’s long-term care financing system by default.  Medicaid planning permits nursing home residents to be covered by the program under its rules.  Congress can change the rules, and often does.  

Obviously, we at The Heritage Law Group hope that you will turn to our firm.  However, those Virginia residents outside of our geographic area can turn here for assistance finding a Virginia Elder Law Attorney.  Or for those seeking assistance outside of the Commonwealth, or who believe that they need particular expertise, you can visit the the The National Elder Law Foundation here, which certifies elder law attorneys nationwide.

Consulting an elder law attorney about the availability of long term care government benefits permits seniors and their families to understand the current benefits program rules and the options available to them.  It does not require them to take any particular steps.  It can be vital to preserving the financial security of a healthy spouse continuing to live at home, to protecting the hopes and dreams of a parent wanting to provide for a disabled child, to make life better for future generations, or to receiving the necessary care at home or in a preferred congregate residential setting.

Heritage Law


With over thirty years of combined experience, we proudly serve the Virginia Peninsula, the Middle Peninsula, and Williamsburg. Our goal is to protect the personal and financial relationships that support your family. This includes preparation for times when you may be incapacitated and making arrangements for your family in the event of your death.