Estate planning, elder law, and probate issues often come to the forefront at the most difficult moments in life — when a spouse passes, when a family member loses capacity, or when the reality of long-term care costs hits home. The Mandelbaum Barrett Elder Law, Probate Litigation, and Special Needs Newsletter covers practical guidance in these areas to help families, caregivers, and advisors stay informed.
The September 2025 issue addresses three topics that arise regularly in our practice. Below is a summary of each, along with key considerations for families and fiduciaries.
Why Medicare and Medicaid Are Not Long-Term Care Plans
Many families assume that Medicare or Medicaid will cover their long-term care needs when the time comes. The reality is more limited. Medicare covers skilled nursing care only in specific circumstances — typically for short-term rehabilitation following a qualifying hospital stay — and only for a defined number of days. It does not pay for custodial care, the kind of ongoing assistance with daily activities that most people need as they age.
Medicaid can cover long-term care, but qualifying requires meeting strict income and asset thresholds. Families who have not planned in advance often face significant spend-down requirements that deplete savings they intended to preserve. Long-term care insurance, properly structured trusts, and strategic asset planning are tools that can help protect your estate while ensuring care needs are met. Working with an elder law attorney well before a crisis arises gives families the most options and the most time to implement them effectively.
When Does an Agent Under a Power of Attorney Become Liable?
A power of attorney is a powerful document that grants another person — your agent — authority to act on your behalf in financial and legal matters. Most agents act responsibly and in the principal’s best interest. Problems arise when an agent acts outside the scope of their authority, uses the power for personal benefit, or fails to act when action is required.
An agent under a power of attorney holds a fiduciary duty to the principal. Breaching that duty — through self-dealing, negligence, or deliberate misuse of assets — can expose the agent to civil liability and, in serious cases, criminal charges for financial exploitation of a vulnerable adult. Families who suspect misuse should consult with an elder law or probate litigation attorney promptly, since asset recovery becomes harder the longer the situation continues.
Navigating the Passing of a Spouse During a Divorce
When a spouse passes away while a divorce proceeding is pending, the legal situation becomes significantly more complicated. In most states, the death of one party during a divorce typically abates the case — meaning the divorce cannot proceed — and the estate of the deceased spouse becomes involved. Marital property rights, beneficiary designations, and inheritance claims must be addressed through probate and estate administration.
Surviving spouses may find themselves caught between what they expected from a divorce settlement and what they actually receive through the estate. Whether you are a surviving spouse, an heir, or a fiduciary navigating this scenario, early legal counsel is essential to protect your position and ensure the estate is administered appropriately.
Contact Mandelbaum Barrett’s Elder Law Team
The elder law, probate litigation, and special needs planning team at Mandelbaum Barrett helps families, fiduciaries, and advisors navigate some of the most challenging situations in estate and long-term care planning. To read the full September 2025 newsletter, download the PDF here. To discuss your estate planning or elder law needs with our team, contact us online to schedule a consultation.
Does Medicare pay for nursing home or long-term care?
Medicare provides limited coverage for skilled nursing facility care following a qualifying hospital stay, but only for a defined period and only for skilled care — not for custodial care, which is the type of ongoing assistance most people need in a nursing home. After the covered period ends, Medicare provides no further payment. Long-term care planning through insurance, trusts, or Medicaid planning is essential for most families who want to protect their assets.
Can I challenge a power of attorney if I believe an agent is misusing it?
Yes. If you have reason to believe an agent is acting outside the scope of their authority, engaging in self-dealing, or financially exploiting the person who granted the power, you can seek legal relief through probate court. Options may include requesting an accounting, having the agent removed, or pursuing civil claims for breach of fiduciary duty. Acting quickly is important because asset recovery becomes more difficult as time passes.
What happens to a pending divorce if one spouse dies?
In most states, the death of a spouse during pending divorce proceedings terminates the divorce case. The surviving spouse may then have rights as a surviving spouse under state law and the terms of any existing estate planning documents, which may differ significantly from what either party expected from the divorce settlement. The outcome depends heavily on the existence and terms of wills, trusts, beneficiary designations, and applicable state law.
How early should I start planning for long-term care?
The earlier, the better. Long-term care insurance typically becomes much more expensive — or unavailable — as you age or if your health declines. Medicaid planning strategies, such as placing assets in certain trust structures, generally involve look-back periods of five years, meaning decisions made close to the time you need care may not provide the protection you intended. Most elder law attorneys recommend beginning the conversation in your mid-50s or early 60s, well before any care need is anticipated.