Elder law attorney Jerold E. Rothkoff, Esq. shares essential legal and financial guidance for families navigating the transition to assisted living. Learn about power of attorney, Medicaid, and more. Fill out the form to watch the recorded webinar, or read a summary below.
Making the decision to transition a loved one into assisted living is rarely easy. Between navigating complex legal requirements, understanding financial options, and coordinating quality care, families often feel overwhelmed by the process. But with proper planning and expert guidance, this important life transition can be significantly smoother.
During a recent Senior Living LIVE! webinar, Jerold E. Rothkoff, Esq., managing attorney of Rothkoff Law Group and a recognized elder law expert with more than 25 years of experience, shared critical insights to help families advocate effectively for their loved ones during this journey.
What Legal Documents Do You Need Before Moving to Assisted Living?
According to Rothkoff, the most important step in planning for any care transition begins with establishing the right legal documents — and doing so while your loved one is still competent to sign them.
"Everyone who's over the age of 18 needs to have documents for living," Rothkoff explains. "A will is important, but it's only effective when death occurs. Prior to death, everyone needs documents that work during their lifetime."
The essential documents include:
1. Durable Financial Power of Attorney
This document allows you to appoint a trusted individual (spouse, adult child, sibling, or friend) to make financial decisions on your behalf if you become incapacitated. "You want to appoint a decision-making surrogate to assist you in making decisions, specifically if you become incapacitated at some point in time," Rothkoff notes.
2. Durable Healthcare Power of Attorney (or Healthcare Proxy)
Similar to the financial power of attorney, this document designates someone to make healthcare decisions for you if you're unable to do so yourself. The terminology varies by state, but the function remains the same: ensuring someone you trust can advocate for your medical care.
3. Living Will and Advanced Directive
Unlike a healthcare power of attorney, which covers general medical decisions, a living will specifically addresses end-of-life care preferences. "It's specifically designed for end-of-life situations," Rothkoff clarifies. "What care you want, what care you do not want."
4. POLST (Physician Orders for Life Sustaining Treatment)
Available in some states, including Pennsylvania and New Jersey, a POLST is a medical order signed by both you and your physician. "It's different than your other documents, which are voluntary," Rothkoff explains. "The POLST is a physician's order that goes into your medical chart... that physicians and your family would have to honor."
When Should You Sign These Documents?
Rothkoff's most important advice: Don't wait until a crisis to establish these documents.
"As you age, the chances of developing some type of cognitive impairment like Alzheimer's-related dementia increase," he warns. "You want to sign documents when you are competent, and those documents would continue to be effective if at some point you are incapacitated."
Without these documents in place, families may face the expensive and time-consuming process of petitioning the court for guardianship — a process that typically takes three to six months and can be avoided with proper planning.
How Much Does Assisted Living Cost?
When it comes to paying for assisted living, Rothkoff emphasizes that families need to understand the significant differences between various care settings and how they're reimbursed.
The Cost Reality
The average cost of nursing home care today exceeds $150,000 annually in many states. In the Philadelphia metropolitan area where Rothkoff practices, costs can reach $180,000 per year or $15,000 per month.
Assisted living costs vary widely by location and level of care, typically ranging from $8,000 to $12,000 per month, with memory care often on the higher end of that spectrum.
Does Medicare Pay for Assisted Living?
Here's what surprises many families: "One of the main differences is in an assisted living setting, unlike a nursing home setting, there is no health insurance coverage that will cover assisted living costs," Rothkoff explains. "Why? Because it's considered custodial care, meaning that it's not skilled care."
This means:
- Medicare does not cover assisted living (it only covers skilled nursing care for up to 100 days following a hospital stay)
- Medicaid coverage for assisted living is limited and varies significantly by state
- Long-term care insurance may cover assisted living, but policies vary
- Most assisted living is private pay, meaning families must use personal savings, retirement funds, or other assets
Does Medicaid Pay for Assisted Living?
While Medicaid is the primary payer for nursing home care nationwide, its role in assisted living is much more limited. "Some states, there is no Medicaid coverage whatsoever for assisted living," Rothkoff notes. "In Pennsylvania, there generally is no coverage under Medicaid for assisted living. New Jersey, there is, but even that is limited."
Even in states where Medicaid covers assisted living, individual communities may have minimum private-pay requirements before accepting Medicaid, or they may only reserve a limited number of beds for Medicaid recipients.
Do Veterans Benefits Pay for Assisted Living?
For eligible veterans or their surviving spouses, VA benefits can help cover the cost of assisted living or home care through programs like Aid and Attendance. "There are situations that you may be entitled or your loved one or surviving spouse... may be entitled to veterans benefits for a tax-free pension," Rothkoff explains.
However, eligibility requirements are specific, and not all assisted living communities participate in VA programs, making it essential to investigate options early.
What Questions Should I Ask When Choosing an Assisted Living Community?
Rothkoff recommends thoroughly researching communities before making a decision — ideally before a crisis forces your hand.
Financial Questions:
- What is the monthly cost, and what services are included?
- If my state offers Medicaid for assisted living, what is your Medicaid policy? Is it in writing?
- What happens if my loved one's money runs out?
- Do you have a benevolent fund or financial assistance program?
- Do you accept long-term care insurance? Which providers?
Care and Lifestyle Questions:
- What is the difference between your assisted living and memory care programs?
- How do you determine when a higher level of care is needed?
- Can we bring in private aides to supplement care?
- What is your pet policy? (This is crucial for many seniors who view their pets as family)
- What are the resident rights?
Practical Considerations:
- Where is the community located? Can family visit regularly?
- What is your staffing model and staff-to-resident ratio?
- What happens during health emergencies or pandemics?
- Can we make unscheduled visits?
"It's like buying real estate. It's location, location, location," Rothkoff emphasizes. "You want to be able to find a community that you can reasonably visit on a regular basis."
When Should I Start Planning for Assisted Living?
Throughout the webinar, Rothkoff returned to a central theme: The time to plan is before a crisis occurs.
"In a perfect world, all of this will be addressed in advance," he says. "But we don't live in that perfect world. We live in the world of human nature. And human nature says we will procrastinate because we do not want to think of bad stuff."
He offers a striking comparison: "We're going to spend hours on Google and TripAdvisor planning our next vacation, but will not even consider reviewing options to care for Mom for the rest of her life."
Steps for Proactive Planning:
1. Have the conversation early — Discuss care preferences with your loved one while they're healthy and cognitively sharp
2. Visit communities in advance — Tour several options to understand what's available in your area
3. Gather financial information — Understand your loved one's assets, income, insurance policies, and benefit eligibility
4. Establish legal documents — Ensure powers of attorney, healthcare directives, and other essential documents are current
5. Create a care team — Identify family members, friends, or professionals (like a geriatric care manager) who can provide support
What Happens to My Spouse When One Moves to Assisted Living?
When one spouse needs assisted living but the other remains healthy and independent, additional planning is crucial.
"You want to protect a healthy spouse," Rothkoff advises.
Key questions include:
- Does the family home need to be sold to pay for care?
- Can the healthy spouse retain sufficient assets and income to maintain their lifestyle?
- Should both spouses move to a senior living community together?
- If they remain apart, how will they maintain their connection?
These decisions have significant financial and emotional implications, making it essential to work with an elder law attorney who understands spousal protections under Medicaid and other benefit programs.
Should I Choose Medicare Advantage or Traditional Medicare?
During the Q&A portion of the webinar, Rothkoff addressed a timely question about Medicare Advantage plans, which are heavily advertised during the annual enrollment period (October 15 through December 7).
His advice: Be cautious.
"You want to think long and hard about switching," Rothkoff warns. Here's why:
The Medigap Trap
If you have traditional Medicare with a Medigap supplemental policy and switch to a Medicare Advantage plan, you may not be able to get Medigap coverage back. "A Medigap plan can discriminate against you because of a preexisting condition," Rothkoff explains. "If you're diagnosed with mild cognitive impairment or Alzheimer's disease, even though you're totally independent, you can be denied a Medigap policy."
The AI Concern
Rothkoff also raises concerns about claim denials: "You're going to see more and more usage of AI to deny claims... Artificial intelligence is being used to review claims and deny claims, specifically by Medicare Advantage plans."
His recommendation: "If you have traditional Medicare now... review those options and determine what's best for you," ideally with the help of a Medicare counselor who can assess your specific situation.
When Should I Hire an Elder Law Attorney?
Given the complexity of elder law, healthcare financing, and care coordination, Rothkoff strongly recommends working with professionals who specialize in these areas.
"People do not understand — the average person, I should say, because they have no reason to deal with it previously — do not truly understand how convoluted the healthcare system is, especially when you're dealing with... a caregiver for an older adult who needs care," he says.
Questions an elder law attorney can help answer:
- What's the difference between Medicare and Medicaid?
- What VA benefits are available to my veteran family member?
- Why doesn't Medicare cover home care or assisted living?
- How can I protect my assets while ensuring my spouse gets needed care?
- What special planning is needed if I have a child with special needs?
Rothkoff's firm, like many specialized elder law practices, goes beyond traditional legal services. His team includes eight full-time geriatric social workers and two occupational therapists who provide healthcare advocacy and home safety evaluations.
"The most important thing we do is healthcare advocacy," Rothkoff explains. "The focus is to get the best care and advocate for our clients."
Final Thoughts: Plan Now to Protect Your Family Later
Transitioning to assisted living represents one of life's most significant changes — both for the person moving and for their family members. While the process involves complex legal, financial, and emotional considerations, Rothkoff's message is ultimately one of empowerment.
By understanding your options, establishing the right legal protections, asking the right questions, and planning before a crisis occurs, you can advocate effectively for your loved one and ensure they receive the quality care they deserve.
The time to start planning is now.
