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A Question for Practicing Lawyers: Could It Be Legal Malpractice to Ignore Long-Term Care Insurance?

April 11, 2010

Long-Term Care Insurance Is a Necessary Option to Consider

Many elderly clients initially think they are somehow benefiting themselves by engaging in the impoverishment aspects of Medicaid planning. Attorneys should make it clear to clients that long-term care planning, which involves Medicaid (known as MassHealth in Massachusetts and Medi-Cal in California) issues, can sometimes be nothing more than inheritance preservation planning. If clients want to protect their assets as an inheritance for someone else, they may be risking the quality of their own health care in their final months and years.

It seems unlikely that any national health care reform in the near future will provide total coverage of long-term care in the United States, and Medicaid will probably continue as a needs-based governmental program. Medicaid may someday, throughout the United States, come to be synonymous with health care rationing.

The real reason that Medicaid planning exists as a legal practice area is that we all have a long-term care gap in our health insurance. Except for care that is essentially rehabilitational, Medicare or Medigap policies do not cover nursing home care. The primary reason that Medicaid planning can be considered moral is the existence of this insurance gap. I don’t think that any responsible attorney would suggest that all clients drop their health insurance, transfer all of their assets and allow Medicaid to cover all of their health care needs.

If the long-term care gap in our insurance is the problem, then legal maneuvering may not be the appropriate solution. An insurance problem is probably more appropriately dealt with through insurance. In my opinion, attorneys should be and pushing clients out the door to plug the long-term care gap with long-term care insurance.

If a surgeon recommended surgery and it ended up with a bad result, and if the surgeon had not even mentioned a viable non-surgical alternative, wouldn’t that surgeon be at risk of a malpractice claim? If an attorney whose client is concerned about future creditors engaged solely in legal planning without due consideration of liability insurance issues, wouldn’t that attorney be at risk of a future malpractice claim if the plan failed? Query whether a malpractice claim against an attorney would survive the attorney’s motion for summary judgment if the sole count were that the attorney did not suggest long-term care insurance, when it was available, as a possible solution to the client’s concerns about long-term care.

A lawyer who gives a client a legal solution to a problem without going into non-legal alternatives could be risking a malpractice claim, even though the lawyer has no knowledge of a pending or possible change in the law that eventually causes the plan to fail. Health care rationing under Medicaid, however, is already going on in Oregon, and any lawyer who claims any expertise in estate planning or elder law cannot successfully argue that such a change in Medicaid laws in other states is unforeseeable. If a future change in federal Medicaid law results in rationed care at a time when the client could no longer purchase long-term care insurance due to age or illness, is an attorney at risk of a malpractice claim by engaging in Medicaid planning without due consideration of long-term care insurance?

Of course, many clients cannot afford long-term care insurance. Unfortunately, many clients who could afford it don’t want to spend the money, and are looking to attorneys for their judgment and guidance on what course of action to take. Attorneys who do not recommend long-term care insurance as a viable option may find themselves, in the clients’ minds, becoming guarantors of the plan to qualify for, and the quality of, Medicaid.

I think we all know we cannot be sure that the Medicaid laws will be the same in the future, and that it is the future law that will matter to many of our clients.

Clients go to attorneys for their judgment on a plan that will meet not only their current but their future needs; errors in such judgment, viewed with the benefit of hindsight, are what attorneys often get sued for. If clients insist on engaging in Medicaid planning because they feel an elder law attorney’s bill will be cheaper than long-term care insurance, they may end up getting what they paid for, and later claiming the attorney gave them poor advice.

In no other area of law practice other than Medicaid is a lawyer deemed to have succeeded based on how much of a direct benefit others received out of the transaction, and how little of a direct benefit the lawyer’s client received. When clients become eligible for Medicaid in the future, if it is not the health care plan they thought they were getting and it is too late or of great expense to change course, will they begin suing attorneys for performing Medicaid planning too well, and elder law too poorly?

3 Comments leave one →
  1. September 20, 2010 3:24 pm

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  2. September 23, 2010 7:22 pm

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