North Carolina Elder Law Estate Planning – Start Here

You’ve worked hard all your life for what you have. As a boomer or senior in North Carolina living your second have of life, thoughts about what would happen if you need long-term care are bothering you more. You don’t want to have to leave home if you or your spouse need care. You worry about going broke in the nursing home, or leaving your spouse destitute.  Plus you tell yourself that you’d like to leave some of your hard-earned savings to your children … instead of letting Medicaid and the government take it. Sometimes these thoughts hit you while you’re driving, or reading the news. Sometimes they wake you up at night, keeping you from going back to sleep. You feel uncertain but know one thing for sure: you are tired of worrying. You wonder, how can you protect yourself and your family, so that you can regain your peace of mind?

Or, perhaps your parents worry you more than you worry about about yourself.  When a parent has memory or mobility issues, or gotten a diagnosis of Alzheimer’s, you know that their need for care could be sooner than later.  They are counting on you to help them through this, and you’re just not sure where to turn. You need answers, and fast.

This site is designed to provide answers to seniors and boomers about North Carolina Elder Care and Estate Planning.

We are elder law and estate planning lawyers practicing in North Carolina. We have the answers you need.

North Carolina Elder and Estate Planning, is packed with information about estate planning, elder law, Medicaid and planning ahead for future long-term care costs. It’s designed to help North Carolina consumers who want to make smart choices to plan ahead for their second half of life, and to help find ways of paying for the cost of care for yourself or a loved one.

What estate planning documents do I need?
Can I protect my home so it’s not taken if I need nursing home care?
How do I make sure that my wife never has to live in poverty?
If I have a living trust am I protected? Do I even need a living trust?
Who can help me and how much does this cost?
When can I get Medicaid and Veterans benefits to help pay for long-term care?
How do I stay at home as long as possible?
What should families know, who have a loved one with Alzheimer’s?
How do I find the right law firm to help?

We’re going to provide answers you need to know. That’s why we’ve created resource centers for each area of North Carolina estate planning. We’ve also created a system to answer your follow-up questions. You’ll soon discover our North Carolina Plan and Protect webinars and many other ways for you to get your elder law and estate planning questions answers.

Here’s the question that you probably want answered most, and that is:

What’s the right plan for me?

That’s easy to answer in general:  Your right plan will accomplish your goals and give you peace of mind. The tougher part is finding how to do that. Here’s how to start, followed by more ideas.


But don’t fool yourself. Even though we do our best to give you the information to understand how estate planning works and what you need to include in your plan, we’re not suggesting that you do it yourself. The reasons are pretty obvious. Don’t you want to benefit from the experience of others in your planning?

The fact is, experience is simply another name for learning from mistakes. You don’t want to make your own mistakes on your estate planning. You can’t re-do your estate planning if you made a mistake but then die or become incapacitated.  A “re-do” for estate planning generally requires court proceedings and that is expensive. Much more expensive than getting the right help to start with.

But, doing your own estate planning could make sense in this situation: you have very little in savings and you don’t care what happens to you if become incapacitated. But if you’ve accumulated some savings through the years, or you want to keep your family out of court if you develop Alzheimer’s disease or have a stroke then you should get an elder law estate planning expert to guide you.


Some people decide to put their fate into their lawyer’s hands without doing any research. We don’t recommend this either, for two reasons:

(a)  By doing enough research to become familiar with the fundamentals of estate planning  will helps you (and your lawyer). That way, you can ask questions and feel more like part of the process. Also, the advice that the lawyer gives to you will make more sense to you and you can evaluate it as an educated consumer. You don’t have to “study” and “learn” estate planning (unless you want to of course) but getting the basic understand will make the process go better.

(b)  And at the very least, you at least need to research whether you’re hiring the right lawyer even if you don’t want to “study” estate planning. We recommend visiting the lawyer’s website. Find out whether they are simply selling themselves or whether they are giving you information that helps you.

When you’re considering which lawyer to contact, find out whether the lawyer has specialized in his or her area of practice. Anyone can call themselves an elder law attorney or an estate planning attorney. When you go a doctor for a knee replacement, you wouldn’t go to a kidney doctor, would you? You also wouldn’t go to the urgent care general practice, either. It’s the same way with your elder law estate planning.  Find the lawyer who has the experience and is Board Certified with the specialty you need. For  elder law estate planning, look for a lawyer who is a Certified Elder Law Attorney, as well as being Board Certified in elder law and estate planning.


This is the strategy we recommend. You’re already reading a terrific article with an over view of elder law estate planning. After you’re done here you can explore this site and find answers to questions that are worrying you. What wakes you up at night, gives you a bit of acid reflux and keeps you from going back to sleep? This site is written to give you answers to those worries. As you look around the site with your favorite cup of coffee, select the articles and videos that interest you. As you read and listen, the concepts and fundamentals will become clearer. You don’t have to become an expert in estate planning and elder law (that would take too much time). You simpley need to find an expert who listens to you, respects you and takes the time to understand what is important to you.

This site – North Carolina Elder and Estate Planning – is all about teaching you what you need to know to make smart plans for yourself and your children through the second half of your life. We’ll walk you through the minefield of hidden traps and avoidable mistakes so you can better protect yourself and your family.

Ask yourself this question. If you and your family were walking through a minefield, what’s the very best way to stay safe? Is it by studying a map and doing it yourself? No, the best way to go through a minefield is to follow a guide who has walked through it before and knows where those mines are hidden. That’s the way to bring you and your family to safety at the other end.

Elder Law Estate Planning doesn’t have to be confusing or scary. And if you’re in a crisis situation needing nursing home care already, know this: the nursing home costs don’t have to leave you devastated.

When a hit by a nursing home crisis or Alzheimer’s diagnosis, people feel uncertain, even frightened about what lies ahead. They don’t want to make the wrong decisions and don’t know where to turn or who to ask about guidance. The world has changed, either gradually or more suddenly, and you’re thrown into a major crisis where life now requires you to make decisions that will affect your family and your finances for years to come. Perhaps you wish you’d done more planning already. Whether you’ve planned ahead for this time or not, now you’re going to revamp current plans and implement new ones. You may ask yourself, how can you make plans at a time that you may be at such an emotional low point? Here’s how.

Despite the crisis and the confusion you’re experiencing, you can get through this with the right information and the right help. Find the help you need to navigate this crisis and avoid the hidden pitfalls of long-term care. Taking the first steps to get started will move you toward to a more pleasant and more predictable future. Through timely action and the right help, you can save yourself time, money, and undue emotional suffering.


Think of North Carolina Elder and Estate Planning as a valuable reference guide. It’s not intended to substitute for the analysis of an experienced North Carolina elder law and estate planning lawyer. You can use this site to help you “find your path” and then select the right elder law estate planning planning attorney as your trustworthy guide.

As a senior or boomer planning for your second half of life, your perspective changes from typical estate planning. Your focus shifts away from traditional estate planning (focused primarily on “What happens if I die” and “Avoiding probate”)  to the bigger worry of: “What happens if I don’t die? What happens if I live a long life, become ill and need care? Where will I get that care, how will I afford it and will my family be OK?”

Elder law estate planning goes far beyond legal documents. You need to have the right plan, incorporating tax saving strategies, trust law, testamentary planning, Medicaid rules, “powerful” powers of attorney and key financial considerations to accomplish your goals. In particular, you want to have a plan that helps you keep more of what’s yours, while getting the care you need.


If you’re facing a nursing home crisis now Medicaid eligibility may be the answer, even if you haven’t done much planning previously.

But you ask, “What about the Medicaid spend down?” Perhaps you’ve already heard from the nursing home, or from the Medicaid office, or from well-meaning friends and family or even your lawyer or CPA that Medicaid can help only after you’ve spent all but $2,000 of your savings. That is simply not true. By finding an experienced lawyer who specializes in both elder law and estate planning, you often can protect about half of your savings, and most if not all of your real estate. Being able to do this requires that the person in the nursing home can still sign documents, or had the foresight to sign a “powerful” financial power of attorney.

Some people ask us, “When is it too late to plan?” The answer we give, that its too late to plan only when there is nothing left to protect. But get started early to preserve more of your assets. A single person will need to spend of their assets on nursing home care, but they don’t have to spend everything and find themselves living on less than a dollar a day. That is Medicaid’s plan for you but you can make a better plan.



When your spouse is in the nursing home, don’t listen when the Medicaid office tells you, “Spend half of your your retirement savings (or more) and come back and apply later. He (or she) might qualify then.” If you follow that advice recognize just one thing: it’s not the role of the Medicaid office to help you preserve your assets. Their job is to tell you to gather information, and then tell you whether you qualify or not.

Clients often wonder, “If I spend half or more of our savings on my spouse in the nursing home, what will I have to live on? I still have to keep up the house, and our expenses have increased not decreased. I’m already stressed out worrying about how to care for my spouse … I really can’t afford to keep worrying about my own finances, too!”

There’s good news: by taking the right steps in the right order and at the right time, and applying state-of-the-art knowledge of Medicaid rules, the healthy spouse doesn’t need to become impoverished. That’s right, generally the healthy spouse can re-arrange assets to protect nearly all of the banking accounts and investments and protect nearly all of the couple’s retirement savings (less income taxes that might result depending on their tax situation). For example, let’s consider the situation of Bob and Mary.  Bob is at home and Mary is in the nursing home, after a hospital stay. They own a home, one car and have $200,000 in savings. Medicaid told Bob to spend half of the assets and come back later. That’s Medicaid’s plan. Actually, Bob is thrilled to hear that there is a better plan. He can keep half of the assets ($100,000)  and Mary can keep $2,000. He doesn’t have to spend the other $98,000 on Mary’s care; instead he can move that into a specific insurance contract (a specialized type of annuity) that “converts” the $98,000 from a countable asset into a “stream of income.” On Monday when the $200,000 is in the bank, Mary would be ineligible for Medicaid; she and Bob would have to pay the nursing home an average of $6,300 or more per month for her care … this month … then next month … and the month after that …and continue until the money is gone. But by converting that $98,000 into a stream of income, Mary could be eligible to receive Medicaid on Tuesday. Naturally, getting approval can take longer but Mary would be eligible back to that Tuesday date when the assets were re-arranged.

Now Bob can stop worrying about his own finances and just worry about Mary’s care instead!


In our example above, Bob is living at home and Mary is now in the nursing home receiving Medicaid. Bob needs to make sure that he re-writes his estate planning because he probably has an “I love you Will” or a “Sweetheart Will.” His Will probably says something like, “I love you Mary and if you survive, everything goes to you. If I survive, everything come to me and then it goes to the kids.” That is very typical and works fine but…now that Mary is receiving Medicaid Bob’s Will needs to change. But that “I love you Will” leaves Mary at risk of getting knocked off of Medicaid and then spending all of the couple’s assets. Here’s why.

If Bob dies before Mary for whatever reason…a heart attack, exhaustion from being the hands-on caregiver for years, a stroke or accident, or another debilitating illness…everything will go to Mary at Bob’s death. All of the savings, investments, the house and whatever is there. That will knock Mary off of Medicaid. Then the money will need to be spent down to $2,000 that Mary can keep and she will need to apply again. Here’s what Bob should do, but so often people don’t get this news until it’s too late and Mary is the one who suffers because of it.

Bob needs to change his Will and his Living Trust (if he has one) to protect Mary. Bob should make use of a special testamentary spousal trust under his Will that is allowed by the Medicaid rules (a “Spousal Trust”). In this trust, Mary is a possible beneficiary and the trust is managed by one or more children (who are trustees). If properly written, this trust will not be a countable asset for Mary’s Medicaid. Moreover, the transfer of the assets into the trust is not a penalized transfer of assets. As a result here is no five-year look back period that would make Mary ineligible for Medicaid.


When a loved one receives (or you receive yourself) a diagnosis of Alzheimer’s or dementia, consider it an alarm bell. You now know that it’s no longer a question of “might” you need long-term care, it’s now a matter of “when.” Plan when you get that diagnosis. Don’t wait until the disease takes it’s terrible toll. If you delay, you’ll lose valuable years of planning time and the disease can progress to the point where you can no longer act to put the needed legal documents in place. You may also need to start plans to rearrange your finances to be better able to pay for the costs of care that are lying in wait for you ready to pounce.

The first step to take is to take inventory of your available resources. If you have long-term care insurance, talk with your lawyer about whether and how much it will help you. The second step is to make sure you’ve got a “powerful” power of attorney to protect yourself, your family and your finances if care becomes necessary or if you can’t make decisions yourself. You also need a health care power of attorney which may or may not include a living will, depending on your wishes.  Beyond this, you may also need more than just a Will. Properly structured trusts can help to preserve your home and part of your savings against future devastating care costs.

Don’t expect that health insurance or Medicare will cover your expenses for Alzheimer’s and dementia. Yes, Medicare is available for doctors and hospitals and prescriptions (with a deductible), along a small amount of therapy at home and up to 100 days of rehabilitation in a nursing home. However, Medicare does not help pay custodial care. That’s why Alzheimer’s is one of the most financially crippling illnesses for Americans. Medicare won’t pay for at-home care, or for assisted living care or for long-term care (after rehabilitation in a nursing home).

With time to plan, it is often advisable to place the residence into a Residence Protector Trust. This is an irrevocable trust, that uses your social security number and keeps you in control of the home while making it safe from Medicaid. However, generally this requires that you wait longer than five years before applying for Medicaid in a nursing home. If its likely you’ll need care in the next year or two, there are other options such as an enhanced life estate deed or ladybird deed that may help protect real estate in North Carolina from Medicaid.


The best time to plan is when you’re a healthy and vigorous boomer or senior. Planning ahead means that you can cover the fundamentals for legal planning. In addition, you can look at financial options that are available to you only if you’re healthy enough to qualify.

Understand that most financial advisers focus on growing your estate and helping you to accumulate your savings. That’s fine but generally as the rate of return increases, so does the risk. As you move to safer investments, your rate of return naturally will go down too. Even investments that are in the stock market have a historical return of less than 10% per year on average.

If you’re healthy and you have some hard earned savings, you should consider a plan that will allocate a portion of those savings so that you’ll have more money for long-term care later. After all one big reason you’ve saved that money is so that you could be ready for a rainy day. You want to have funds available to pay for the costs of nursing home care for you or your spouse that currently can run $80,000 per year or more here in North Carolina.

One option would be to carve off a portion of your savings or IRA to use only a portion of your retirement savings for future long-term care. The rest of your retirement funds would be invested however you wish. Just this part would be allocated for future long-term care. Why? Very simply that’s because you want to leverage your savings. When the rainy day comes when you or your spouse needs care at home, you want your umbrella to be as big as possible. There are financial products available that are specifically designed to address that.

You might ask, “But what if I never need care? Is that money wasted? If I’m healthy and never need long-term care or only need it for a few months before I die, does any of this policy go to my family?” That answer is, that most traditional long-term care insurance was “use it or lose it.” It was like your homeowner’s insurance where you paid your premium every year and you only received something back if your home was damaged. People often objected to this because they felt like if they never needed the care their family should be penalized. Fortunately, now there are newer policies that offer a death benefit to the family if the policy is not fully needed for care. Moreover, some of these policies have a “return of premium” benefit that lets the individual receive back all or nearly all of the initial investment or the increased value of the policy over time.

Your elder law estate planning attorney should be familiar with these financial strategies in addition to the legal strategies. He or she can help to coordinate your legal and financial plan to get the right result for you.


Understand that there are really only 5 ways to plan for long-term care. They are as follows:

1. Medicare – for a very brief time and only for nursing home care.

2. VA Benefits – This is a program called Aid and Attendance for veterans who served on active duty during a wartime period. There are service requirements, as well as income and asset limits for qualification, and the benefits are especially helpful for supplementing existing income for at-home care and assisted living care.

3. Long-term care insurance – many people don’t have this. However, it can be the best way to afford care at home, and to protect against having to cash in IRAs if care needs arise. This is an important planning step to take and should be part of your consultation with your elder law estate planning attorney.

4. Private Pay – this is using your savings, IRAs and investments are far as they go to pay for care each month. Again, by planning ahead to have long-term care insurance, you can leverage a portion of your savings, so that you can have more available for long-term care. Without long-term care insurance, you may still be able to leverage your available assets by selling insurance policies (including term insurance) under a life care settlement.

5. Medicaid – the Medicaid rules are quite complex. You should study the information on this site, North Carolina Elder and Estate Planning to get familiar with the rules. Then find an experienced Certified Elder Law Attorney to assist you. You can use these rules to plan ahead (with a five-year look back for any transfers of assets) or to qualify for Medicaid during your lifetime.


There’s no other way to say it. Using the right lawyer can make a genuine difference in the results of your planning, and whether you feel comforted or uncertain. A caring, compassionate and experienced lawyer who truly listens to you and responds appropriately can greatly reduce your fears, uncertainty and confusion. You can have confidence that you’re getting good advice. But a lawyer who doesn’t listen to you or who botches your planning will make you feel a whole lot worse. Maybe the lawyers who make you feel “small” or who lack the experience to help are why lawyers get such a bad rap. Fortunately, you can find lawyers who will make you feel better and know what they are doing.

We’ve written a guide on How to Choose Your North Carolina Elder Law Estate Planning Attorney. It outlines all of the characteristics the professional you hire to help you should have. If you still don’t know where to start, you might start with the list of the North Carolina Board Certified Specialists in estate planning and elder law.



We recommend using an experienced, qualified lawyer for your planning and for filing most Medicaid applications. However, there are forms for planning available online. Be sure to read the fine print on those forms. If a problem arises, your rights against the online-forms company will be very limited.

You also can file your own Medicaid application if you’d rather not get help. We don’t advise that, unless there are no assets, and there is no real estate. I recently had a case where someone filed a Medicaid application, and by following the advice they got from the Medicaid office their mother was approved for Medicaid. But what the Medicaid office didn’t tell them and they never would have known until it was too late, was that upon their mother’s death, the family farm and the family home place were both going to be taken by the State of North Carolina with a Medicaid lien at death. Ouch! Fortunately, someone told them they needed to see us and we were able to fix that before they got that rude awakening.

If you do get a third party to help with your Medicaid application, make sure that they are familiar with the Medicaid laws and how to preserve assets after the Medicaid applicant dies. In fact, a recent court ruling in Florida determined that non-lawyer third parties who help with Medicaid applications are acting illegally by practicing law without a license. Don’t risk your families’ future. Often the fee paid to an experienced Elder Law Estate Planning attorney for a Medicaid crisis application will save your family more money than you pay the lawyer.


To contact The Elderlaw Firm, please send us an email at elderlaw@elderlawfirm.com