Elder law is the planning that happens when age, illness, or incapacity turns a legal question into a financial emergency. The Holmes Law advises older adults and their families in Idaho, California, Texas, Washington, North Carolina, and Massachusetts on paying for long-term care, protecting a home from estate recovery, putting decision-making authority in place before it is needed, and avoiding guardianship where a less restrictive alternative will do. Because Medicaid is administered state by state, the same set of facts produces different answers in Boise, Sacramento, Dallas, Seattle, Raleigh, and Boston — which is the reason a multi-state practice matters here more than in almost any other area of law.
The figures on this page are current for 2026. Nearly all of them change every January, and several change again each July.
What Elder Law Covers
- Long-term care financing — Medicaid eligibility and spend-down planning, qualified income trusts, spousal impoverishment protections, and VA Aid and Attendance.
- Asset protection for the well spouse — keeping a community spouse from being impoverished by the other spouse’s nursing home costs.
- Estate recovery planning — structuring ownership so the state’s claim against the estate after death is limited or avoided.
- Incapacity planning — durable powers of attorney, health care directives, HIPAA authorizations, and portable medical orders.
- Guardianship and conservatorship — petitions where they are genuinely necessary, and the alternatives that make them unnecessary.
- Planning for a family member with disabilities — special needs trusts and ABLE accounts that preserve means-tested benefits.
- Elder financial exploitation — undoing transfers made under undue influence, and drafting documents that resist it.
Paying for Long-Term Care
Medicare Does Not Pay for Long-Term Care
This is the single most common and most expensive misunderstanding families bring through the door. Medicare covers skilled nursing care for a limited period after a qualifying hospital stay. It does not cover custodial care — help with bathing, dressing, eating, and supervision — which is what most people in a nursing facility actually need.
For 2026, Medicare Part A skilled nursing facility coverage works like this: days 1 through 20 carry no coinsurance, days 21 through 100 carry a coinsurance of $217.00 per day, and after day 100 in a benefit period the beneficiary pays everything. Coverage also requires a qualifying inpatient hospital stay of at least three consecutive days. Time spent in the emergency department or under observation status does not count toward those three days, and families routinely discover this only after the bill arrives. Ask the hospital, in writing, whether the patient is admitted as an inpatient or held under observation.
Medicaid Long-Term Care: The 2026 Numbers
Medicaid is the primary payer for long-term nursing facility care in the United States. It is means-tested, jointly funded, and administered by each state under federal minimums. The federal figures for 2026:
- Community Spouse Resource Allowance: minimum $32,532, maximum $162,660. This is what the spouse who remains at home may keep in countable resources.
- Monthly Maintenance Needs Allowance: minimum $2,705 (July 1, 2026 through June 30, 2027), maximum $4,066.50. This is the monthly income the community spouse may retain, potentially including a diversion from the institutionalized spouse’s income.
- Home equity limit: states set a limit between $752,000 and $1,130,000 for 2026.
- Special income level: $2,982 per month for an individual, which is 300% of the SSI federal benefit rate ($994 per month for an individual in 2026).
- Countable asset limit: $2,000 for a single applicant in most states.
California is now the exception that most published guidance still gets wrong. California’s Medi-Cal asset limit was reinstated effective January 1, 2026 at $130,000 for one person, plus $65,000 for each additional household member. Content written during 2024 and 2025 describing California as having no asset test is out of date.
The Five-Year Lookback
When someone applies for Medicaid long-term care, the state reviews the previous 60 months of financial transactions. Assets given away or sold for less than fair market value during that window create a penalty period of ineligibility. The penalty is calculated by dividing the uncompensated value by the state’s published average private-pay cost of nursing facility care — Texas, for example, uses $262.37 per day as of September 2025.
The cruelty of the rule is in its timing. The penalty period does not begin when the gift is made. It begins when the applicant is otherwise eligible, in a facility, and applying — in other words, when the money is already gone and the care is already needed. A well-meant gift to a grandchild five Christmases ago can leave a family with no assets and no coverage at the same moment.
California again runs on its own rules. California’s lookback is 30 months rather than 60, and transfers made between January 1, 2024 and December 31, 2025 are excluded from consideration entirely, with the lookback effectively running forward from January 1, 2026.
Qualified Income Trusts in Idaho and Texas
Idaho and Texas are income cap states. An applicant whose gross monthly income exceeds the cap is ineligible, full stop — there is no medically needy spend-down to fall back on. Idaho’s long-term care income limit is $3,002 per month for an individual with a $2,000 resource limit; Texas uses the federal special income level of $2,982 per month, also with a $2,000 resource limit and a $75 monthly personal needs allowance.
The solution is a Qualified Income Trust, often called a Miller trust: income above the cap is deposited into an irrevocable trust each month and disbursed under strict rules. It must be drafted and funded correctly, and it must be funded every single month. A QIT that sits empty does nothing. Washington also operates under the special income level and permits a QIT. North Carolina and Massachusetts are medically needy states, where excess income is spent down on care instead. California uses a share-of-cost model with no income cap at all.
VA Aid and Attendance
Wartime veterans and their surviving spouses who need help with daily activities may qualify for an enhanced VA pension. For the period running December 1, 2025 through November 30, 2026, the maximum annual pension rate with aid and attendance is $29,093 for a veteran with no dependents, $34,488 for a veteran with one dependent, and $18,697 for a surviving spouse. The net worth limit is $163,699, counting assets plus annual income, with the primary residence on up to two acres excluded.
Since October 18, 2018 the VA has applied its own 36-month lookback to asset transfers, with a penalty capped at five years. Note that the VA lookback and the Medicaid lookback are different lengths, run from different dates, and use different penalty divisors. Planning that solves one can create a problem under the other, which is why they have to be worked at the same time.
Eligibility generally requires 90 days of active duty with at least one day during a recognized wartime period for service beginning before September 8, 1980, and 24 months for service beginning on or after that date. The wartime day need not have been served in combat or overseas.
Protecting the Home and the Estate
Medicaid Estate Recovery
Federal law requires every state to seek recovery from the estates of Medicaid enrollees who were 55 or older when they received nursing facility services, home and community-based services, and related hospital and prescription drug services. No recovery is permitted while there is a surviving spouse, a child under 21, or a blind or disabled child of any age. Every state must offer an undue hardship waiver.
Beyond that federal floor the states diverge sharply, and the difference is often the family home:
- Idaho is among the broadest. Idaho Code § 56-218 permits recovery of all medical assistance paid for anyone 55 or older, not just long-term care, and applies an expanded definition of “estate” that reaches joint tenancy interests, survivorship interests, life estates, and living trusts. A revocable trust does not put an Idaho home beyond reach.
- Washington also uses an expanded estate reaching non-probate assets and life estates, and recovers state-funded long-term services at any age, not only from age 55. Washington defers during hardship rather than waiving.
- California is the most protective of the six. For deaths on or after January 1, 2017, recovery is limited to what federal law requires and reaches only assets that pass through probate — a properly funded living trust or a joint tenancy is outside it — with no recovery against a surviving spouse’s estate.
- Massachusetts narrowed its program substantially. Under the Long-Term Care Act signed in September 2024 and applied to deaths on or after August 1, 2024, MassHealth recovery is now limited to the federally mandated services, where previously it pursued all MassHealth services for enrollees 55 and older.
- Texas draws bright lines: no claim where the estate is worth $10,000 or less, or where total Medicaid costs were $3,000 or less, with hardship waivers for modest homesteads and family farms and businesses.
- North Carolina waives recovery where total estate assets are under $50,000 or total Medicaid paid is under $10,000, and defers while a spouse, minor child, or disabled child survives.
A Change Coming January 1, 2028
Federal legislation enacted in 2025 imposes a hard $1,000,000 home equity cap for Medicaid long-term services and supports on non-agricultural property, effective January 1, 2028, and removes the state option to elect a higher limit. Twelve states currently at $1,130,000 will have to come down — including California, Washington, and Massachusetts. Families in high-value housing markets in those three states have a planning window that closes at the end of 2027.
Incapacity Planning: The Documents That Have to Exist First
Every tool on this page depends on someone having legal authority to act. If capacity is already gone, the only remaining route is a court proceeding — slower, public, and far more expensive than the documents that would have prevented it.
Durable Power of Attorney
Idaho, Washington, and North Carolina have all enacted the Uniform Power of Attorney Act — Idaho Code Title 15, Chapter 12; RCW Chapter 11.125; and N.C.G.S. Chapter 32C, effective January 1, 2018. In those states a power of attorney is durable by default unless it says otherwise.
The other three have not. California operates under the Power of Attorney Law at Probate Code §§ 4000–4545, with a separate statutory form act at § 4400. Texas uses its own Durable Power of Attorney Act, Estates Code Chapters 751 through 753, with a statutory form at § 752.051. Massachusetts is the outlier: its durable power of attorney statute, G.L. c. 190B §§ 5-501 through 5-507, runs to seven sections, provides no statutory form, and — critically — requires express durability language. A Massachusetts power of attorney that omits it dies at the moment it is needed.
A related practical point: a bank or brokerage that refuses to honor a valid power of attorney has meaningful legal exposure in the UPOAA states and much less of it in Massachusetts. Where a client holds accounts across state lines, the document should be drafted to survive the least accommodating of them.
Health Care Directives
The terminology changes at every state line, and so does the substance:
- Idaho — the Advance Care Planning Document under Idaho Code § 39-4510. Note that Idaho retired the older “Living Will and Durable Power of Attorney for Health Care” terminology in 2023; forms circulating under the old name are outdated.
- California — the Advance Health Care Directive, Probate Code Division 4.7, statutory form at § 4701.
- Texas — two separate instruments: the Medical Power of Attorney (Health & Safety Code § 166.164) and the Directive to Physicians (§ 166.033).
- Washington — health care agent authority sits inside the power of attorney act at RCW 11.125.400, while the living-will instrument is the Health Care Directive under the Natural Death Act, RCW 70.122.030.
- North Carolina — the Health Care Power of Attorney, G.S. Chapter 32A Article 3, plus a separate Advance Directive for a Natural Death at G.S. § 90-321.
- Massachusetts — the Health Care Proxy, G.L. c. 201D. Massachusetts has no living will statute. A written statement of end-of-life wishes is evidence of intent and guidance to the agent, but it is not legally binding on physicians. Clients who moved to Massachusetts with a living will from another state are frequently unaware of this.
Portable Medical Orders
For someone who is already seriously ill, an advance directive is not enough — emergency responders act on medical orders, not planning documents. That order goes by a different name in each state: POST in Idaho (Idaho Code § 39-4512A), POLST in California (Probate Code §§ 4780–4786) and Washington (by Department of Health program rather than a dedicated statute), MOST in North Carolina (G.S. § 90-21.17), and MOLST in Massachusetts, which is transitioning to the national POLST model under G.L. c. 19A § 44. Texas has no statewide POLST statute; its portable instrument is the Out-of-Hospital DNR under Health & Safety Code Chapter 166, Subchapter C.
Guardianship and Conservatorship
When capacity is gone and no documents exist, a court has to appoint someone. Every one of the six states now requires the court to consider less restrictive alternatives first — California by express finding under Probate Code § 1800.3(b), Texas by clear and convincing evidence under Estates Code § 1101.101(a)(1), North Carolina by statute declaring guardianship “a last resort,” and Massachusetts by a finding that needs cannot be met by less restrictive means under G.L. c. 190B § 5-306(b).
Vocabulary is a genuine hazard across state lines. In California, conservatorship is the adult protective proceeding — conservator of the person, conservator of the estate, or both, under Probate Code § 1801. In Texas, conservatorship means child custody; the adult proceeding is guardianship of the person or of the estate under Estates Code Title 3. Families who move between the two states routinely ask for the wrong thing.
Idaho’s Law Changes January 1, 2027
Idaho enacted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act in 2026 (S.B. 1240, Session Law ch. 79), and it takes effect January 1, 2027. Rather than creating a new chapter, it rewrites Idaho Code Title 15, Chapter 5 in place: guardianship of an adult moves to Part 3, conservatorship to Part 4, and a new Part 5 adds other protective arrangements — court-ordered measures short of a full guardianship. The new act applies to existing guardianships as well as new filings, so Idaho families with a guardianship already in place should expect the framework around it to change.
Washington adopted the same uniform act earlier; its adult provisions took effect January 1, 2022 at RCW Chapter 11.130. California, Texas, North Carolina, and Massachusetts each retain their own frameworks.
Supported Decision-Making
A supported decision-making agreement lets an adult keep legal authority over their own life while formally designating people to help them understand and communicate decisions. Texas enacted the first such statute in the country in 2015 (Estates Code Chapter 1357). Washington followed at RCW 11.130.700 through .755, and California at Welfare & Institutions Code §§ 21000–21008, effective January 1, 2023. Idaho gains one when UGCOPAA takes effect in 2027. North Carolina treats it as an example of a less restrictive alternative rather than a standalone statute, and Massachusetts has not enacted one.
Planning for a Family Member with Disabilities
An inheritance left outright to a person receiving SSI or Medicaid can terminate those benefits. Two structures prevent that.
Special needs trusts. A first-party trust under 42 U.S.C. § 1396p(d)(4)(A) holds the disabled person’s own assets — typically a personal injury settlement or an inheritance that arrived unprotected. It must be established before the beneficiary turns 65, and on death the state must be reimbursed for Medicaid paid. Since the Special Needs Trust Fairness Act of 2016, a competent adult may establish one for themselves; before that, only a parent, grandparent, guardian, or court could. Pooled trusts under § 1396p(d)(4)(C) are run by nonprofits with a separate account for each beneficiary and carry no statutory age limit, though some states penalize funding at or after 65. A third-party special needs trust — funded by a parent or grandparent with assets that were never the beneficiary’s — carries no payback obligation at all, which is why an inheritance should be routed into one rather than left outright and then rescued.
ABLE accounts. For 2026 the annual contribution limit is $20,000. Note that this no longer equals the gift tax annual exclusion of $19,000 — a change in the statute’s inflation base year separated the two figures for the first time in 2026, and a good deal of published guidance still treats them as identical. More significantly, the ABLE Age Adjustment Act took effect January 1, 2026, raising the age of disability onset from before 26 to before 46. That change makes ABLE accounts newly available to a large population of people disabled in mid-life, including many with adult-onset conditions who were previously ineligible. ABLE accounts carry a Medicaid payback, but only for assistance paid after the account was opened, and only on a claim the state must affirmatively file.
Two Gifting Rules People Get Wrong
The annual exclusion is not a Medicaid allowance. The federal gift tax annual exclusion for 2026 is $19,000 per recipient, and the federal estate tax exemption is $15,000,000. Neither figure has anything to do with Medicaid. A $19,000 gift is perfectly fine for tax purposes and is still a fully penalized transfer inside the lookback. This confusion costs families more money than any other single mistake in elder law.
Paying a parent’s care bill directly is not a gift at all. Under IRC § 2503(e), payments made directly to the provider for someone’s medical care — including nursing facility charges, assisted living medical costs, and health insurance premiums — are excluded from gift tax entirely, with no dollar cap and no relationship requirement. The payment must go to the facility, not to the parent. Write the check to the parent and you have made a $19,000-limited gift; write it to the nursing home and you have made no reportable gift at all, and you can still make the annual exclusion gift on top of it.
Elder Law by State
A quick orientation to where each state sits. Figures are 2026 and change annually.
| State | Medicaid income structure | Estate recovery reach | Guardianship framework |
|---|---|---|---|
| Idaho | Income cap, $3,002/mo; QIT required | Broad — all medical assistance from 55, expanded estate | UGCOPAA effective Jan 1, 2027 |
| California | Share of cost, no cap; $130,000 asset limit as of 1/1/2026 | Narrow — probate estate only, deaths from 2017 | Conservatorship, Prob. Code § 1801 |
| Texas | Income cap, $2,982/mo; QIT required | Moderate — $10,000 estate floor | Guardianship, Estates Code Title 3 |
| Washington | Special income level $2,982/mo; QIT available | Broad — expanded estate, state-funded services at any age | UGCOPAA since Jan 1, 2022 |
| North Carolina | Medically needy spend-down | Moderate — waived under $50,000 estate | G.S. Chapter 35A; last-resort standard |
| Massachusetts | Medically needy spend-down | Narrowed in 2024 to federally mandated services | G.L. c. 190B Article V |
For state-level detail see our Idaho, California, Texas, Washington, and North Carolina pages. Elder law planning also overlaps heavily with estate planning — most clients need both, and the documents should be drafted together rather than in sequence.
Frequently Asked Questions
Is it too late to plan if a parent is already in a nursing home?
No. Crisis planning is a real and substantial part of elder law practice. Options narrow once someone is already receiving care, but spousal protections, personal services agreements, annuity conversions, and correct application timing can still preserve significant assets. What is genuinely lost is the flexibility that comes from planning five years ahead.
Will Medicaid take the house?
The home is generally an exempt asset while the applicant or a spouse lives there, subject to the equity limit. The exposure comes later, through estate recovery after death. How much exposure depends entirely on the state: in California, recovery reaches only assets passing through probate, so a funded living trust protects the home. In Idaho, the expanded estate definition reaches living trusts and joint tenancy, so the same strategy fails.
Can I just add my child to the deed?
It is one of the most common and most damaging do-it-yourself moves. Adding a child to a deed is an uncompensated transfer that triggers a Medicaid penalty, exposes the home to the child’s creditors and divorce, and forfeits the stepped-up basis the child would have received by inheriting instead — often creating a capital gains bill far larger than the problem it was meant to solve.
Does a will avoid guardianship?
No. A will operates only at death and does nothing during incapacity. The documents that prevent guardianship are the durable power of attorney and the health care directive, and both must be signed while the person still has capacity.
My parent has documents from another state. Do they still work?
Usually, but not reliably. Most states honor out-of-state powers of attorney and health care directives, and the uniform acts improve portability. The practical failures are specific: a Massachusetts power of attorney lacking express durability language, a living will brought into Massachusetts where none is binding, and Idaho health care forms using terminology the state retired in 2023. A document review is far cheaper than discovering the gap in an emergency room.
How is elder law different from estate planning?
Estate planning is largely concerned with what happens after death — who receives what, and with how little tax and friction. Elder law is concerned with the years before it: paying for care, keeping a well spouse solvent, and making sure someone has authority to act. The two overlap in the same documents, and a plan built for one without regard to the other tends to fail at exactly the wrong moment.
Schedule a Consultation
Elder law questions rarely arrive on a comfortable schedule. If a hospital discharge planner has just used the words “skilled nursing,” or a parent’s memory has changed noticeably, or a spouse has been told to “spend down,” those are the moments to call rather than wait. Contact the office to discuss your situation.