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Local Attorney Wins Elder Rights Decision

By Staff | Dec 3, 2008

A Federal Appeals Court has upheld a wife’s right to protect her savings from her husband’s nursing home costs.

Josephine James consulted with Marshall, Parker & Associates in August 2005 when her husband entered a nursing home. Like many “community spouses” she was concerned that the monthly cost of her husband’s care would destroy her financial security.

Federal Medicaid law has long allowed “community spouses” like Mrs. James to protect their assets through the purchase of a specialized “Medicaid Annuity.” The annuity works by converting excess resources that would otherwise have to be spent on nursing home care into protected income that the community spouse can keep.

Mrs. James purchased an annuity that met the Medicaid requirements. But, when Mr. James applied for Medicaid in September 2005, his application was denied by the Pennsylvania Department of Public Welfare (DPW). This was surprising because a federal court had previously ordered DPW to grant eligibility in a similar case.

The James family, represented by Marshall, Parker & Associates’ Attorney Matthew J. Parker, filed an action in federal court to force DPW to grant Mr. James the benefits to which he was entitled under the Medicaid laws. In a Nov. 12, 2008 decision, the Third Circuit Court of Appeals has upheld Mr. James right to Medicaid and Mrs. James right to protect her savings from her husband’s nursing home costs.

“This decision helps preserve the rights and dignity of older adults in Pennsylvania,” said Attorney Parker. “It is wrong for us to take people life savings away because their husband or wife gets sick and needs nursing home care. Federal law grants financial protections to community spouses like Mrs. James. This case was about making sure the government gives seniors the protections the law allows. That’s our job and that’s why we are here.”

Parker also noted that “most annuities do not meet Medicaid requirements. People should not engage in this kind of planning without the help of an experienced elder law attorney.”

The decision, James v. Richman, is binding throughout Pennsylvania, New Jersey and Delaware, and should influence courts in other states as well.

Attorney Parker is a principal with the Law Firm of Marshall, Parker & Associates. He is a Certified Elder Law Attorney by the National Elder Law Foundation, a distinction held by less than fifty attorneys in Pennsylvania. He is a magna cum laude graduate of the University of Pittsburgh and he received his law degree from Dickinson School of Law in 1995. Attorney Parker has also been named a “2008 Super Lawyer” in the field of elder law.

Founded in 1980, the Law Firm of Marshall, Parker & Associates has become widely recognized throughout the country as a leader in providing expert estate planning and elder care planning services to preserve the rights and dignity of seniors. The firm has offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton. The case and additional information is available on the firm’s website at www.paelderlaw.com.