Don and Marjorie Peterson put their home in what they thought was a Medicaid Asset Protection Trust. They named their daughter as trustee and their two grandchildren as “remainder” beneficiaries who would inherit the home after they died. Medicaid Asset Protection Trusts are irrevocable. Thirteen years later, their relationship with their daughter and grandchildren having soured, they unsuccessfully petitioned the court to terminate the Trust. Their granddaughter opposed the petition.
Don and Marjorie correctly pointed out, in their argument to the court, that the trust agreement drafted by their lawyer failed to meet legal requirements for protecting their home if, in the future, they required nursing home care and applied for Medicaid. Unfortunately, observed the judge, this “mistake of law” did not justify termination of the trust. The error could not be fixed. To learn more about this case, see In the Matter of Peterson Family Irrevocable Trust, 2025 PA Super 60.
Had Don and Marjorie consulted an elder law attorney knowledgeable and experienced in the use of Medicaid Asset Protection Trusts, they could have successfully terminated the trust without the need to go to court. Moreover, they could have changed the terms of the trust to replace the trustee and the remainder beneficiaries, thereby avoiding the need to terminate the trust.
“Time and again,” observes George Vasiliadis, an attorney with the law firm of Vasiliadis Pappas Associates, “we encounter clients who relied upon attorneys for their long-term care planning who lacked the requisite legal skill.” Any lawyer can call himself an “elder law attorney” regardless of the actual skill, or lack thereof to perform the services. If you want to hire an elder law attorney, especially as regards asset protection against long-term care costs, ask the prospective candidate the following:
Are you a Certified Elder Law Attorney?
All attorneys in Pennsylvania are licensed to practice law by the Pennsylvania Supreme Court. But only a Certified Elder Law Attorney, with the “CELA”—Certified Elder Law Attorney — designation is recognized by the Court as an elder law specialist. Strict and comprehensive criteria must be met to become a CELA. These include a one-time full-day certification examination; rigorous continuing education requirements; substantial experience in a wide range of elder law issues; a favorable evaluation by five elder law attorney specialists; and a similar re-certification process every five years.
How many cases like mine have you handled before?
Any lawyer with little or no actual experience can claim to be to be an elder law attorney. Others may have experience with elder law but not with the matter involved. For example, there are many lawyers who prepare wills, powers of attorney and living wills but don’t know how to help someone protect their assets against financially ruinous nursing home costs. Ask for specifics, including the types of elder law cases they have handled in the past.
Have you written any articles published in legal journals on elder law topics? Can I see some of them?
As with medicine and many other licensed professions, publication in recognized legal journals or other peer-review periodicals is one indicator that the lawyer you interview has good credentials.
Have you earned any awards or other recognition in the field of elder law? What are they and who awarded them?
Recognition by colleagues is more than just a plaque on the office wall. Attorneys, like other professionals, know their industry and are more likely to confer professional honors on those who stand out among their colleagues and the competition. This is another indicator that the lawyer you hire is qualified.
Have you presented any programs on behalf of the Pennsylvania Bar Institute on topics of elder law?
An invitation from the Pennsylvania Bar Institute, the educational arm of the Pennsylvania Bar Association, to teach elder law to attorneys throughout the State, demonstrates that this person is someone recognized by his or her peers as an expert in the field.
Do you litigate adverse decisions in elder law cases? How many elder law cases have you litigated regarding the issues involved in my case? What is your track record of success in litigating elder law cases?
Some lawyers who take on elder law cases have no litigation experience. Other lawyers may be experienced litigators but do not know or understand the law applicable in elder law matters. In either case, this can put the client at a great disadvantage. The Pennsylvania Department of Human Services, the agency that administers Pennsylvania’s Medicaid program, occasionally takes positions contrary to federal mandates. When that happens, it rarely backs down unless faced with a credible challenge.
Thinking about consulting with the Lawyers at Vasiliadis Pappas Associates? Ask around about us and investigate our credentials. And DO ask us the questions above. We think you’ll be pleased with the answers.
Concerned about protecting your assets and avoiding costly trust mistakes? Contact Vasiliadis Pappas Associates for expert guidance on Medicaid and long-term care planning.
