Question:  Would you please provide me with some information re: gifting as it relates to VA planning for Aid & Attendance.  It is my understanding that there are no penalties involved for gifting assets in order to reduce resources to approved levels.  Mom’s income is less than the medical expenses that she will pay in the assisted living facility, but her assets are a bit too high.

Answer:  At this time, gifting does not create penalties (or periods of ineligibility) for the purposes of VA pension benefits.  That being said, gifting for VA purposes may create penalties (periods of ineligibility) for the purposes of future applications for Medi-Cal for skilled nursing facilities.  Any time you do gifts for VA purposes, you should be structuring a plan that ensures that you will not be creating periods of ineligibility for future Medi-Cal applications.  Often a stroke, hip fracture, heart attack, or some other unexpected medical hospitalization and subsequent discharge to a skilled nursing facility will create a need for Medi-Cal benefits within the look-back period (currently 30 months after the gift was made, or 60 months in the case of gifts to irrevocable trusts, and 60 months for all gifts in the future when the Deficit Reduction Act is implemented with filing of final regulations with the Secretary of the State of CA).  If you have not structured the gifts to create either no period of ineligibility or very minimal period of ineligibility, then you will have shot yourself in the Medi-Cal foot when you do your VA pension gifts.  Because the gifting rules for Medi-Cal are complicated, see an experienced California attorney who knows the current rules about gifting.  Be sure to ask the attorney if they are experienced in the laws governing gifting under Medi-Cal and if they can structure a gifting program that will not create a period of ineligibility, or that will greatly minimize any gifting period of ineligibility.  Also, if you are thinking of gifting real estate, the rules are even more complicated for purposes of VA pension or Medi-Cal, and you will need an attorney with experience in both areas of law.  Any time you gift an asset that has appreciated in value since purchase, there will be tax issues to evaluation, discuss, and account for—income tax issues, capital gains step-up issues, 121 exclusions, property tax reassessment issues, so do not try to do this on your own.  Lastly, when someone needs VA pension now, it is not unlikely that they will need Medi-Cal within a matter of months or a few years, so always consider that VA gifts may create Medi-Cal penalties if not structured properly.   The area of gifts for VA and Medi-Cal is not a do-it-yourself proposition.  Get good legal advice and guidance. 

Dallas Leigh Atkins, Esq.
Law Offices of Dallas Atkins
Santa Barbara, CA  93101
805-687-8782
www.AtkinsElderCareLaw.com
Member of the national ElderCare Matters Alliance, California chapter

Answer:  If you are a professional who helps families plan for or deal with ANY of their elder care matters, then you owe it to yourself to be listed on America's #1 online source for "Elder Care Experts"….

ElderCareMatters.com

ElderCareMatters.com is where you will find more than 2,000 competent, caring elder care experts located across America, including:

• Elder Law Attorneys
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This is also where you will find some of America's best:

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Together, we provide families across America with:

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So if you are a competent, caring elder care professional who helps families with ANY of their elder care matters, then request today an Application for Membership in the national ElderCare Matters Alliance and get listed on ElderCareMatters.com - America's #1 source for "Elder Care Experts" plus information and answers about a wide range of elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters, LLC
ElderCareMatters.com

 

 

 

Answer:  The correct answer is "It depends". It depends on your unique family, health, and financial situation. Tax consequences also have to be considered. In the event you need long-term care, there is a five year look-back period that applies to gifts (transfers of assets without consideration). Thus, if you are faced with a chronic or catastrophic illness within five years after you transfer the home to your children; such transfer may impact your ability to obtain Medicaid (Title 19) benefits. This is a very complicated area of the law and requires careful consideration.

If it makes sense to transfer the home to your children, there are several ways to structure the transfer. The first is an outright gift to your children. This is generally not advisable for tax reasons and asset protection purposes. The second is by completing the transfer but retaining a life estate. While generally superior to an outright gift, this is also not without problems. However, the retained life estate does give you some legal control over the property and also preserves some tax benefits associated with inherited property versus gifted property. The third is a transfer of your home to an irrevocable trust. This is usually the preferred method of protecting the home as it balances tax benefits with asset protection issues and also protects the home from your children's creditors or in the event they should predecease you.

As you can see, the transfer of your home is something that requires careful consideration and sound legal counsel.

Paul T. Czepiga, Esq., CELA
Czepiga Daly Dillman, LLC
Newington, CT  06111
860-597-7995
www.CtSeniorLaw.com
Member of the national ElderCare Matters Alliance, Connecticut chapter

Answer:  Wow, I would be worried also, without any assurances in writing.  Please understand that there are a number of issues in your question, all rolled into one.  First, when your mother entered the assisted living facility, she or, perhaps a family member acting on her behalf, probably signed a contract.  It is important to know what provisions are contained in the contract to see if, in fact, what you have been told verbally is in the written agreement.  Second, you said your mother moved into assisted living.  However, unless it is a continung care community or one of the few supportive living facilities in Illinois that take Medicaid, most assisted living facilities do not accept Medicaid, so more information is needed. Third, you don't mention how your mother is paying for the assisted living facility and what other assets she may have, so it's difficult to asses how soon she may need assistance paying for care.  The house presents a trickier issue.  Is there a possibility your mother intends to return to her home?  If so, the home may not be considered an available asset for purposes of qualifying for Medicaid.  The home may also be exempt if a "qualifying family member" is living in the home.  She may be allowed to transfer the home to a qualifying family member.  However, if she does not intend to return home, if there is no qualifying family member living in the home, and the home is sold, there may be planning strategies that could preserve some of the funds for her use, rather than to spend them all down before qualifying.  Bottom, line, it is not a simple question, and you would be well served by seeking the advice of an experienced elder law attorney in your area who could sort out all the issues and recommend planning strategies rather than rely on verbal assurances of the facility representative.

Teresa Nuccio, Esq.
Teresa Nuccio & Associates, P.C.
Park Ridge, Illinois  60068
847-823-9576
www.teresanuccio.com
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Georgia Medicaid policy, found at Section 2332 et seq. of VOLUME II/MA, MT 39-08/10 titled “Retirement Funds”, expressly exempt retirement funds, including, Individual Retirement Accounts (IRAs) Keogh plans, and some retirement profit sharing plans are “exempt” or non-countable resources for Aged, Blind, or Disabled classes of Medicaid, including Long-Term Care (Nursing Home) Medicaid if owned by the applicant/recipient if the applicant/recipient applies for “periodic” distributions.  To be eligible for ABD Medicaid, the individual must apply for periodic benefits.  If s/he has the choice between periodic payments and a lump sum, the individual must apply for periodic payments. 

A “lump” sum is a liquidation of the retirement fund.  There’s no requirement in the Medicaid plan that payments be taken monthly; payments can be made annually.  The Medicaid policy states “[p]eriodic retirement benefits are payments made to an individual at some regular interval (e.g. monthly).  The signal, “e.g.” means “for example”.  As a result, the use of “monthly” in the policy is intended only as an example of what “periodic payments” means.  

The caseworker is directed to determine if the applicant for Nursing Home Medicaid is eligible for periodic payments from the IRA.  If not, can the individual make a lump sum withdrawal.  If the individual is eligible and receiving periodic payments, the payments are treated as “income” only; the fund is disregarded as an asset. 

A retirement fund belonging to an applicant/recipient’s spouse is disregarded, regardless as to whether periodic payments are made. 

The income is budgeted with other sources of income the applicant receives.  For example, if she has Social Security retirement and the IRA distributions, these amounts make up her income.  Once Medicaid eligibility is established, Medicaid calculates a “patient liability” or cost-share which is her contribution toward the costs of her long-term care.  Patient liability is paid over to the nursing home each month.  

The IRA does not designate the State as the beneficiary upon death; she can designate whomsoever she wishes. 

It sounds like the Medicaid caseworker communicating with this family is confusing the treatment of an “annuity” with the treatment of “retirement funds” for Nursing Home Medicaid eligibility purposes.

David Paul Pollan, Esq.
The Pollan Law Firm
Atlanta, Georgia  30309
678-510-1358
www.PollanLawFirm.com
Member of the national ElderCare Matters Alliance, Georgia chapter

Answer:  It is my pleasure to provide you with the following list of the 87 different elder care services that are currently provided by the members of the national ElderCare Matters Alliance on ElderCareMatters.com:

1. Accounting Services
2. Adult Day Care
3. Advance Medical Directives
4. Aging in Place Services
5. Alzheimer's / Memory Care Communities
6. Annuities
7. Arbitration
8. Asset Protection Planning
9. Assisted Living Communities
10. Assisted Living Referral Services
11. Bankruptcy
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14. Caregiving Education
15. Companion Care
16. Conservatorship
17. Consumer Law
18. Continuing Care Retirement Communities
19. Cremation Services
20. Crisis Intervention
21. Daily Money Management
22. Dementia Care
23. Disability Income Insurance
24. Disability Planning
25. Elder Abuse Litigation Services
26. Elder Law
27. ElderCare Planning
28. Estate Administration
29. Estate Liquidation
30. Estate Planning
31. Family Law
32. Financial Planning
33. Funeral Services
34. Geriatric Care Management
35. Guardianship
36. Health Insurance
37. Hoarding Clean Up and Coaching Services
38. Home Care
39. Home Downsizing Services
40. Home Health Care
41. Home Modifications
42. Hospice Care
43. Independent Living Communities
44. Investment Services
45. Life Care Planning
46. Life Insurance
47. Litigation
48. Long Term Care Insurance
49. Long Term Care Planning
50. Medicaid Planning
51. Medical Services
52. Medical Alert Systems
53. Medical Claims Processing
54. Medical Equipment & Supplies
55. Medical Malpractice Litigation
56. Medicare Consulting
57. Medicare Supplemental Insurance
58. Medication Management Services
59. Moving Services
60. Nursing Homes
61. Personal Finance
62. Powers of Attorney
63. Probate
64. Professional Organizing
65. Public / Non-Profit Resources
66. Real Estate Services
67. Rehabilitation Services
68. Residential Psychiatric Care
69. Respite Care
70. Retirement Planning
71. Reverse Mortgages
72. Securities Arbitration & Litigation Services
73. Senior Housing
74. Senior Move Management
75. Senior Move Planning
76. Senior Relocation Services
77. Social Security Disability Services
78. Special Needs Planning
79. Tax Law
80. Tax Planning
81. Tax Preparation
82. Transportation Services
83. Trustee / Fiduciary Services
84. Trusts
85. VA Benefits
86. Wills
87. Wound Care

The goal of ElderCareMatters.com is to provide families across America with the help they need to plan for and deal with their elder care matters.  Let us know if there are other elder care services that you would like to have us list on ElderCareMatters.com – America's #1 source for Elder Care Experts plus information & answers about a wide range of elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO, ElderCare Matters, LLC
ElderCareMatters.com
1-877-379-4500

Answer:  Whether or not your parents’ deposit qualifies as an exempt asset under Medicaid depends on whether the contract is a lease agreement or a contract to purchase a unit.  At many assisted living residences the contract is a lease agreement, not ownership, and will not qualify.  In Massachusetts, home ownership is required to qualify for the exemption for your home.  The home ownership exemption, however, is not valid if he is not able to return home.  As a result, many clients who own homes will protect them and their life-savings with an asset protection trust.  That way the deposit at an assisted living residence can be funded with home sale proceeds or other savings and continue to be protected in the trust even if they get sick in a nursing home and are no longer able to satisfy the requirement of “intending to return home.”  As a result of the asset protection trust there is more flexibility and greater protection for life savings, without the otherwise required ability to return home.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:  There is a 5 year look back period for Medicaid.  Any asset transfers, including gifts, made within this 5 year look back window will trigger a penalty period of ineligibility to receive Medicaid benefits.  There are ways to avoid triggering these penalties but an outright gift is not one of the ways.  

As an example of the problem with making an outright gift, if your grandfather gifts to you $200,000 today and in 3 years requires skilled care, the gift of $200,000 will render him ineligible for Medicaid benefits for a significant period.  During the period of ineligibility he, or you, will have to pay for any nursing home care. 

In Massachusetts, the homestead protection will not keep your grandfather’s $200,000 from the reach of nursing homes, but a primary residence is often an exempt asset for Medicaid (Mass Health).  In Massachusetts however, the nursing home or skilled care facility will be able to put a lien on your home if you use a portion of his $200,000 gift to purchase the home and put his name on the deed.  

However, since you are buying your home in Florida, it may be to your grandfather’s advantage to have him contribute to the new house and count it as his “homestead”.  If he requires nursing home care in Florida, it is my understanding that his $200,000 would be exempt, but you should check with an attorney in Florida.  

If your grandfather is truly seeking to protect assets from the reach of nursing homes, setting up an asset protection trust is often the recommended option.  Creating an irrevocable trust starts the 5 year look back clock as soon as the trust is funded.  Once the property is in the trust, your grandfather can make any type of gift or transfer he so chooses without “resetting” the 5 year look back period.  In addition the irrevocable trust allows your grandfather to protect ALL of his assets while allowing access to income.  As another added benefit, your grandfather’s life savings will be left to his loved ones without the need for probate.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:  Yes, a trust can be named the beneficiary of an income annuity; however, it must be done 5 years (60 months) prior to eligibility for Medicaid in order to be a non-countable resource for Medicaid purposes. The spouse could be the primary beneficiary with the state the ultimate beneficiary.

To find competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

Answer:  In most cases I have recommended that the parents set up a living trust using "handicapped" language for the disabled child. This provides the disabled child supplemental care without loss of federal or state benefits and provides a better lifestyle. In addition, other children that are not disabled or handicapped can inherit their shares in a normal manner. There is no need to "disinherit" the disabled or handicapped individual. 

In some cases a "Medicaid payback" trust may be used where the disability is the result of an injury or an accident and there is a sizeable insurance settlement that might reduce or eliminate Medicaid benefits. The theory is that the settlement dollars will be invested and the "payback" to Medicaid upon the death of the beneficiary will still leave a significant amount for the beneficiary's heirs, siblings or others.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

Answer:  It depends what you mean by “respite care.”  If you mean this in the most general way, that is, finding an alternative source of supervision and assistance for your loved one while you are at work, then you can certainly do that on a regular scheduled basis.  You might arrange for a caregiver to come in to your home, or you might find an adult day center in your area.   Many adult day centers will provide transportation between the client’s home and the center, and they typically provide one or more meals each day.  In both of these cases, the client or family will need to pay for these services as they are not covered by Medicare.  If the client has long term care insurance, these services are typically covered expenses under the terms or the policy.  Some adult day centers offer a sliding scale payment structure or are subsidized by local or state governments.   In some states, clients who are covered by Medicaid are also eligible for services in the community on a regularly scheduled basis as part of a “diversion” or “waiver” program where the goal is to keep these individuals out of nursing homes which are generally more costly.  However, since Medicaid is a state run program, you need to become familiar with what is available in your state.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter

Answer:  I would NOT risk losing Medicaid over this car. I suggest buying the car for a nominal price.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter

John E. Settle, Jr., Attorney at Law

John E. Settle, Jr., Esq.
1915 Citizens Bank Drive    
Bossier City, LA 71111
Telephone: 318-742-5513
e-mail:   Send E-Mail
website: http://www.SettleLawFirm.com

This week's Featured Elder Care Expert is John E. Settle, Jr., Attorney at Law, Member of the Louisiana chapter of the national ElderCare Matters Alliance (a network of 1,450+ elder care experts) and Founder of the Law Office of John E. Settle, Jr., a law firm in Bossier City, Louisiana, a firm that specializes in Elder Law, Estate Planning, Elder Abuse Litigation and closely related practice areas. 

Every day this week (M-F), Mr. Settle will answer one of your questions about his areas of expertise (Elder Law, Estate Planning, Elder Abuse, Probate, etc), and this selected question along with Mr. Settle 's answer will be posted on the Featured Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask Mr. Settle a question about one of your elder care matters, just send a short email (a few sentences only please) to: questions@ElderCareMatters. com.  And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Featured Elder Care Question of the Day.

This week's Featured Elder Care Expert is Angela N. Manz, Attorney at Law, Member of the ElderCare Matters Alliance (a network of 1,450+ elder care experts) and Founder of the Law Office of Angela N. Manz, a law firm in Virginia Beach, Virginia, that specializes in Elder Law, Estate Planning, and closely related practice areas. 

Every day this week (M-F), Ms. Manz will answer one of your questions about her areas of expertise (Elder Law & Estate Planning), and this selected question along with Ms. Manz 's answer will be posted on the Featured Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask Ms. Manz a question about your elder care matter, just send a short email (a few sentences only please) to: questions@ElderCareMatters. com.

And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Featured Elder Care Question of the Day.

Answer:  Whether giving away assets is a good strategy for your parents will depend on a number of factors including their age, health, how they feel about giving up control over their assets, and how they feel about having less flexibility regarding where care can be provided.  

Oftentimes assets are given directly to a child with the thought that the child will use the funds for the parents later when the need arises.  But a true and complete gift does not come with strings, once given to the child there is no legal obligation on the part of the child to help mom and dad later.  What if the child does have good intentions to help mom and dad, but divorces, is sued, is influenced by a spouse, or is just not good with money?  Mom and dad’s hard earned assets may be taken away forever. 

Giving assets away can be tricky.  If after giving assets away mom or dad needs care prematurely i.e., within 5 years of the gift, a penalty period or period of ineligibility for Medicaid will result.  This period will not begin to run until mom or dad applies for Medicaid. 

You don’t indicate your parents age or health status, but purchasing a long-term care insurance policy to cover a period of 5 years could be a good investment.  There are policies available that include a return of premium feature, meaning that if the policy is not used the premiums are given back.  There are also life insurance policies that have long-term care riders.  With this type of policy if long-term care is needed the policy is tapped and if not it continues as a regular life policy paying a benefit on death. 

It will be worthwhile to consult with an elder care attorney to learn about all the options for long-term care planning available.  The guidance of a professional will save the family time, money and stress in the long run.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Answer:  First, let me say that it is nice to see a family discussing planning in advance of the need for long-term skilled nursing care.  By planning now a greater variety of options are available to meet your goals.  I am going to presume that you are concerned about preserving assets if your parents need to rely on Medicaid to pay the nursing home bills.  The Medicaid rules vary somewhat for each state, but as a general principal to get the most preservation you will need to plan at least 5 years in advance of the need for care. 

Any planning that is done must consider not only the rules for Medicaid eligibility but also the recovery (or payback) rules.  For example, the home is an exempt asset for eligibility purposes and it could remain in your parents’ name, but upon the death of the remaining spouse the state will want to be paid back for the care it provided to the ill spouse, which could result in the forced sale of the home. 

Asset preservation will fall into 2 categories – converting assets from non-exempt to exempt and getting assets out of your parents’ names, i.e., giving them away.  Some examples of conversions include using funds to make repairs or improvements to the home, buying mom and dad a new car, purchasing a Medicaid compliant annuity or entering into a personal care contract. 

Because giving assets away means a loss of control over the asset, your parents need to be part of the plan.  If they are “young” healthy elderly they may not be ready to give up control.  Flexibility in the plan will be important as will giving assets away in the right way.  

Oftentimes assets are given directly to a child with the thought that the child will use the funds for the parents later when the need arises.  But what if the child divorces, is sued or is just not good with money?  Mom and dad’s hard earned assets may be taken away forever.  Included in the definition of “giving away” is adding a child’s name to the house deed or bank accounts.  Therefore giving assets away in the right way is critical.  Special irrevocable trusts work nicely to provide the protections your parents need.  

A final word of warning when giving assets away, if mom or dad needs care prematurely i.e., within 5 years of the gift, a penalty period or period of ineligibility for Medicaid will result.  This period will not begin to run until mom or dad applies for Medicaid. 

When it comes to Medicaid and asset protection planning timing and knowledge are everything and it is not a do-it-yourself project.  An elder law attorney in your state will be able to guide and educate your parents about the Medicaid rules applicable in your state and which preservation techniques will suit them best.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Answer:  The truth is that, the Medicaid department is not authorized to send anyone over to actually take possession of the house.  However, after the death of the second parent the state wants to be paid back and may seek “recovery” from assets owned by the survivor at the time of the survivor’s death.  However, the state may only be paid back up to the amount that they actually paid out, but this still may result in the forced sale of your parents’ home. 

However, in your case there is an exception to the recovery rules because your parents have a disabled child.  When there is a surviving disabled child a recovery claim is prohibited by federal and state laws.  The surviving disabled child will need to provide documentation of disability or blindness, such as a Social Security or SSI award letter and a birth certificate showing they are the child of the deceased. If the surviving child does not have documentation of disability from the Social Security Administration, he/she can still file for a disability determination with the Medicaid department.  It is important to note that the surviving child does not have to live in the home (or even in the State, for that matter) in order for recovery to be barred. 

Signing over the home now may sound like a good idea, but it carries some big risks.  First, when your parents sign over the house they lose control and that can mean that the kids can kick them out at anytime.  In addition, if a child’s marriage ends in divorce or the child is sued the house can be taken away.  Finally, if your parents sign over the house and then need Medicaid within 5 years of the transfer a penalty and ineligibility for Medicaid for a period of time will result with the ineligibility period starting at the time they apply for Medicaid. 

As you can see Medicaid planning is filled with traps for the unwary.  I encourage you to seek the advice of a qualified elder law attorney in your state who will help guide you through the process.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800

Ms. Chubb is this week's Featured Elder Care Expert on www.ElderCareMatters.com, and will be answering your questions about Elder Care Matters.

Heather R. Chubb is a Life Transitions Lawyer in the Sacramento area dedicated to helping individuals and families make the best possible legal decisions for themselves and those they love. She uses her passion to educate her clients and make navigating the legal world easy, understandable and comfortable.

While each of her clients has different needs and objectives; they all have the common goal of protecting those they love, keeping control for as long as possible, making the most of assets they worked hard to acquire, and making things as easy as possible for their loved ones. She is particularly attuned to the needs of the “sandwich generation” balancing the demands of children, home, work and caring for elderly parents.

Whether developing a foundational estate plan, special needs plan, long-term care plan (including Medi-Cal and VA benefits), or advanced plan, or administering a plan upon death or incapacity, the focus is the individual client and their needs and goals.

Heather is a member of the State Bar of California Trusts and Estates section, WealthCounsel, the National Academy of Elder Law Attorneys (NAELA), and the national ElderCare Matters Alliance, California chapter.

Answer:  Your husband should qualify for Medicaid given his age and disabilities. You didn’t mention his or your monthly income or your family resources. However, assuming his monthly income is less than $2,022.00, assuming his resources are less than $2,500.00, and further assuming your family resources are less than $109,560.00, then your husband should qualify for Medicaid benefits. Allow me to add that your current situation as a “burned out” primary care giver is common. It would appear essential to your continued good health that your husband transition into a long term skilled care facility in the near future. I recommend that you contact an Elder Law attorney to assist your family with the asset planning and Medicaid planning that will be required for your husband to successfully qualify for Medicaid, while at the same time protecting your family assets. Also, please visit the Center for Medicare and Medicaid Services website at www.cms.gov for further information and helpful resources. Thank you for your inquiry, and best of luck!

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Dennis Duncan, Attorney at Law
The Law Offices of Dennis L. Duncan, P.C.
Macon, Georgia  31210
478-254-4232
Member of the national ElderCare Matters Alliance, Georgia chapter

Answer:  Your situation is not uncommon, and actually, you are in pretty good shape financially for your husband to transition into a long term healthcare or nursing home facility.  In order for your husband to qualify for Medicaid he must be 65 years or older, and in his case, disabled. He must have a monthly income of no more than $2,022, which he does at $1,950. Another factor is the Community Spouse Resource Allowance (CSRA), which for 2011 is limited to $109,560. Since your principal residence, your car, your husband’s IRA, and his term life insurance policy are all exempt resources, your husband should qualify for Medicaid. However, allow me to add that if the principal residence is held in Joint Tenancy with Right of Survivor, you and your husband should consider placing it in your name in Fee Simple. There is no penalty on spousal gifts, and when your husband passes, you will not have to worry about Medicaid’s Estate Recovery seeking his share of the property as reimbursement for benefits provided. 

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com/statechapters.htm

Dennis Duncan, Attorney at Law
The Law Offices of Dennis L. Duncan, P.C.
Macon, Georgia  31210
478-254-4232

Member of the national ElderCare Matters Alliance, Georgia chapter

Get FREE advice every day about elder care matters from one of our 1,375+ elder care experts (and our team of experts is growing daily).

Families now have FREE access every day to the advice of one of our 1,375+ ElderCare Matters Alliance experts, offering YOU not only answers to your elder care questions but also providing you with up-to-date, useful articles about a wide range of elder care matters. This is information that will help YOU plan for and deal with your family's issues of aging.

This week's Featured Elder Care Expert is Dennis Duncan, Attorney at Law, from Macon, Georgia.  Mr. Duncan provides legal assistance in the areas of Elder Law, Elder Care Planning, Asset Protection Planning, Social Security, Medicaid/Disability Planning, Wills and Trusts, Advance Directives, Probate Law, Guardianship/Conservatorship, and Annuities.  Mr. Duncan will answer a different question each day about his areas of expertise, and a selected question along with Mr. Duncan's answer will be posted on the Featured Elder Care Question of the Day section of www.ElderCareMatters.com.

So if you would like to ask Mr. Duncan a question about an elder care matter, just send a short email (a few sentences only please along with your first name and City & State) to: questions@ElderCareMatters.com. 

And remember to bookmark www.ElderCareMatters.com and check back every day to see if your question is our Featured Elder Care Question of the Day. 

---

Special Offer for ALL Elder Care Professionals:  The next 125 elder care professionals who apply for Lifetime Membership in the national ElderCare Matters Alliance will receive a 25% discount off the regular price of $450 for lifetime membership.  (Just $337.50 for a "lifetime membership")  This is a very cost effective way to "get the word out" to literally hundreds of thousands of families across America about how you and your company can help families with their elder care matters. 

So if you are a competent, caring elder care professional – take advantage of this special 25% discount offer for a "lifetime membership" (and there are no annual membership dues, ever!) in the national ElderCare Matters Alliance.

Answer:  The income and resource (asset) levels for Medicaid assistance for nursing home costs do vary from state to state. In Massachusetts, a single person can own no more then $2,000.00 in countable assets (not including the value of a home and automobile).

A couple can own $111, 560 in countable assets (not including the value of a home and automobile).

In Massachusetts (and many other states) there is no income limit in order to qualify for the long term care Medicaid program, which pays for nursing home costs.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Dagmar M. Pollex, Attorney at Law
The Law Offices of Dagmar M. Pollex, P.C.
Braintree, Massachusetts  02184
781-535-6490

Member of the national ElderCare Matters Alliance, Massachusetts chapter

At last, families across America have one resource they can tap into daily to relieve the stress of aging… ElderCareMatters.com

ElderCareMatters.com, along with the 1,350+ members of the national ElderCare Matters Alliance, provides families with the elder care resources they need to plan for and deal with their issues of aging.  In fact, here is where you will locate, by state, some of America's top elder care professionals who provide a total of 68 different elder care services that will help you plan for and deal with your family's issues of aging, including: Advance Medical Directives Aging In Place Services Alzheimer's / Memory Care Communities Annuities  Arbitration  Asset Protection Planning Assisted Living Communities  Assisted Living Referral Services Bankruptcy Caregiving Education  Consumer Law Continuing Care Retirement Communiities Crisis Intervention Daily Money Management / Bill Paying Disability Income Insurance Elder Abuse Litigation Services Elder Law ElderCare Planning / Long-Term Care Planning Estate Administration Estate Liquidation Estate Planning Financial Planning Geriatric Care Management Guardianship / Conservatorship Health Insurance Hoarding Clean Up and Coaching Services Home Care Home Downsizing Services Home Health Care Home Modifications Hospice Care Independent Living Communities Investment Services Life Care Planning Life Insurance Litigation Long-Term Care Insurance Medicaid / Disability Planning Medical / Healthcare Medical Alert Systems Medical Claims Processing Medical Equipment & Supplies Medicare Consulting Medicare Supplemental Insurance Medication Therapy Management Moving / Relocation Services Personal Finance / Accounting / Tax Preparation Powers of Attorney Probate Public / Non-Profit Resources Real Estate Services Rehabilitation Services Residential Psychiatric Care Respite Care Retirement Planning Reverse Mortgages Securities Arbitration & Litigation Services Senior Move Management Senior Move Planning Social Security Disability Services Special Needs Planning Tax Law Tax Planning Transportation Services Trustee / Fiduciary Services Trusts VA Benefits Wills

If you and your family need help with your elder care matters, this is where you will find competent, caring elder care experts located near you who provide a total of 68 different services that will help you plan for and deal with your family's issues of aging.  Whether you are looking for: an elder law attorney in Philadelphia a geriatric care manager in South Florida a long-term care insurance professional in Fort Worth, a home care provider in Southern California, or an assisted living community in Phoenix (as shown in the photo above)… you can count on www.ElderCareMatters.com to help you find the Elder Care Experts and services that you will need in ALL 50 states (plus the District of Columbia).

Special Offer for ALL Elder Care Professionals:  The next 125 elder care professionals who apply for Lifetime Membership in the national ElderCare Matters Alliance will receive a 25% discount off the regular price of lifetime membership. So if you are a competent, caring elder care professional – take advantage of this special 25% discount offer and pay only $337.50 for a "lifetime membership" (and there are no annual membership dues, ever!) in the national ElderCare Matters Alliance.    To request a Membership Application, send an email to: info@ElderCareMatters.com.

Answer:  I would need to know more specifics about your mother’s situation as well as the type of Medicaid assistance she will be seeking. However, the rules for Medicaid qualification, especially for individuals like your mother who is working and receiving disability benefit vary greatly from state to state.  I recommend that you contact an elder law attorney in your mother’s state who includes disability benefits in their practice areas.

To locate elder law attorneys in your state who may be able to help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Dagmar M. Pollex, Attorney at Law
The Law Offices of Dagmar M. Pollex, P.C.
Braintree, Massachusetts  02184
781-535-6490

Member of the national ElderCare Matters Alliance, Massachusetts chapter

Answer: Your mother will be able to continue living there as long as she wants and does not have worry that she’ll have to sell it to pay the cost of your father’s nursing home care.

It is very important that your parents meet with an elder law attorney in your state as soon as possible as there are other planning options for your parents to consider that could protect the value of the town home and other assets.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Dagmar M. Pollex, Attorney at Law
The Law Offices of Dagmar M. Pollex, P.C.
Braintree, Massachusetts  02184
781-535-6490

Member of the national ElderCare Matters Alliance, Massachusetts chapter

Answer:  A homestead would not disqualify the sisters from Medicaid and SSI benefits.  However, a trustee cannot transfer ownership  if sisters are only entitled to “life estate” benefits.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Joseph F. Pippen, Jr., Attorney at Law
Law Office of Joseph F. Pippen, Jr. & Associates
Largo, Florida  33771
727-586-3306

Member of the national ElderCare Matters Alliance, Florida chapter

Answer:  Most states have a look-back period of five years and any gift made in the five-year period prior to applying for Medicaid would put you in a penalty period of ineligibility for Medicaid.  This penalty period of ineligibility for Medicaid starts when you are otherwise eligible for Medicaid.  The meaning of “otherwise eligible” varies from state to state, but in Illinois this means you have $2,000 or less in assets and you are in a Medicaid facility. You should not make an outright gift or transfer of your home to your daughters.  Aside from the penalty period Medicaid will impose, there are consequences in regards to your real estate taxes as well: 1) you will lose your homestead exemption, 2) you will lose your senior exemption and possible senior freeze or deferral of taxes, and 3).  you would be transferring your basis in the property to her as a gift rather than giving her a “step-up” in basis at the time of your death.  This means, she would have to pay capital gains tax on the property based upon the difference between your original purchase price and the price she sold the home for in the future.  For these reasons, I cannot recommend you gift or transfer the property to your daughter or daughters.

As far as Medicaid is concerned, if you sell your property for fair market value to your daughter or another third party, this will not affect your eligibility for Medicaid.  Furthermore, this would allow your daughter who resides with you to establish her own homestead exemption.  However, if she rents the property back to you this would be rental income to her that she would have to claim on her taxes. 

There is a caretaker child exemption in many states which allows the transfer of the home to a child who has cared for their parent without creating a penalty for Medicaid.  Illinois is currently in the process of changing all of their Medicaid rules to come into compliance with the Deficit Reduction Act.  Under current Illinois rules, transferring the home to a caretaker child is an exempt transfer (PM 07-02-20(b)).  To qualify as a caretaker child in Illinois, the rules state, “a person’s child who provided care (either nursing or support) for the person and who was living in the homestead property for at least two years immediately before the date they entered the facility or applied for/received [Medicaid] services.”  Under the new proposed rules from Illinois, they initially proposed rules that were hyper-technical and would effectively eliminate the possibility for this exempt transfer to occur.  I created and co-chair the Task Force for Senior Fairness with fellow elder law attorney, Diana M. Law, which has worked tirelessly to combat Illinois’s proposed rules in areas we consider to be too harsh, punitive and draconian for our Seniors.  One of our wins, is that Illinois has changed their proposed rules in the area of the caretaker child.  The rules still contain more criteria to qualify as a caretaker child, but the exemption remains and is now manageable to obtain.  Once the new rules are implemented, the caseworker will also need proof of the child’s residence and a doctor’s note stating the applicant would have had to go the nursing home earlier but for the child’s assistance they were able to stay at home.

The best advice I can give you is to see an elder law attorney in your area while you are still healthy who is familiar with Medicaid, Real Estate and Personal Care Contracts so you can establish in writing that your daughter is providing care for you. 

NOTE:  The information provided above is not intended to be nor should be relied upon as legal advice.  Peck Bloom, LLC is located in the State of Illinois and the attorneys are only licensed to practice law in Illinois and Florida.  You should consult a qualified attorney licensed in your state regarding these matters.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Kerry R. Peck, Managing Partner
Peck Bloom, LLC
Chicago, Illinois  60603
1-877-845-1743

Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Most states have now enacted the changes to Medicaid eligibility under the Deficit Reduction Act of 2005. This Act changed the look back period (the period during which Medicaid "looks back" to see if any gifts were made) from three year to five years. Therefore, any transfer of the home should happen at least 5 years in advance of the need for Medicaid. However, you must educate yourself about all the issues surrounding a house transfer before you take this step. Sometimes transferring the house could be a worse solution than Medicaid (who may not even force the house to be sold). Problems include: capital gain taxes, loss of senior property tax exemptions, children creditor problems, fights between children, etc. Rules are different in every state, so this may not apply to you and your situation. I strongly advise you to talk with an elder law attorney in your state before making any transfers.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmhurst, Illinois  60126
630-782-1766
Member of the national ElderCare Matters Alliance, Illinois chapter

 

Answer:  Each state has a specific agency that runs the Medicaid program. In Illinois, this agency is called the Department of Human Services. In your state it might have a different name. To apply for Medicaid, you need to contact this agency in the particular County that your wife is going to live in. Generally, the staff at the nursing home can point you in the right direction and they may even have the forms for you to fill out.

To locate experts in your state who can help you with this elder care matter, go to: www.ElderCareMatters.com/statechapters.htm

Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmhurst, Illinois  60126
630-782-1766
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  This is a very complex situation. The short answer is that in many states if there is a divorce and the court orders assets to be split in a certain way, the Medicaid agency will respect that court order and determine Medicaid eligiblity just using the assets of the ex-spouse who lives in the nursing home. In some states this will not work. Also, during a divorce, a court may require either a guardianship or the appointment of a guardian ad litem to protect the interests of the sick spouse, including the validity of any pre-nuptual agreement. Please check with both an elder law attorney and a divorce attorney in your state to confirm whether this advice applies to you and your situation.

To locate experts in your state who can help you with your elder care matters, go to: www.ElderCareMatters.com/statechapters.htm

Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmhurst, Illinois  60126
630-782-1766
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Generally the asset check is at the time of Medicaid application, not admittance. However, each state is different.  

Please check the following ElderCare Matters site to locate an elder law attorney near you: www.ElderCareMatters.com/statechapters.htm

Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmhurst, Illinois  60126
630-782-1766
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Medicaid will probably be able to pay for your father's stay at the nursing home if the nursing home accepts Medicaid for payment.  Under Medicaid in many States (please confirm this with an elder law attorney in your state), the spouse living in the community (that is, your mother), is allowed to keep a certain amount of cash assets and a house of any value as long as they live in the house. If your mother was in Illinois, she would be able to keep $109,560 in cash plus a house of any value. So, I don't think the nursing home is being that truthful to you. Please see an Elder Law attorney in your state to learn the options you mother has.

To find an Elder Law attorney near you, use the following ElderCare Matters's resource: http://www.ElderCareMatters.com/statechapters.htm

Ben A. Neiburger, JD, CPA
Neiburger Law, Ltd.
Elmshurst, Illinois  60126
630-782-1766
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  The home, 20 C.F.R. Sec. 416.1212 (see also SS POMS SI 01130.100 A.3), with an equity value of no more than $500,000 including the land appertaining thereto; "home" is defined as any property in which an individual has an ownership interest and that serves as the individual's principal place of residence; if the individual (and spouse, if any) moves out of the home with the intent to return, the home becomes a countable resource because it is no longer the individual's place of residence.

David F. Anderson, Esq.
David F. Anderson, P.A.
Miami Lakes, Florida  33016
305-825-4052
Member of the national ElderCare Matters Alliance, Florida chapter

Answer: It appears that with the facts given you could put the money into a Medicaid Asset Protection Trust and he should qualify for Medicaid now.  If carefully drafted, you could be the trustee and even provide for certain bills that could be paid from these funds for his care.

David F. Anderson, Esq.
David F. Anderson, P.A.
Miami Lakes, Florida  33016
305-825-4052
Member of the national ElderCare Matters Alliance, Florida chapter

Answer:  Legal problems that affect the elderly are growing in number.  Our laws and regulations are becoming more complex.  Actions taken by older people with regard to a single matter may have unintended legal effects.  It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems. 

Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law.  Some of these include:

• Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
• Medicaid
• Medicare claims and appeals
• Social security and disability claims and appeals
• Supplemental and long term health insurance issues.
• Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetence or incapacity.
• Conservatorships and guardianships
• Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents
• Probate
• Administration and management of trusts and estates
• Long-term care placements in nursing home and life care communities
• Nursing home issues including questions of patients’ rights and nursing home quality
• Elder abuse and fraud recovery cases
• Housing issues, including discrimination and home equity conversions
• Age discrimination in employment
• Retirement, including public and private retirement benefits, survivor benefits and pension benefits
• Health law
• Mental health law

Most Elder Law Attorneys do not specialize in every one of these areas.  So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles.  You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list.  For example, if you are going to prepare a new will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse’s medical care planning.

David F. Anderson, Esq.
David F. Anderson, P.A.
Miami Lakes, Florida  33016
305-825-4052
Member of the national ElderCare Matters Alliance, Florida chapter

Steven H. Peck, Attorney at Law
Law Offices of Steven H. Peck, Ltd.
300 Saunders Road
Suite 100
Riverwoods, Illinois  60015

Member of the national ElderCare Matters Alliance, Illinois chapter

Steven H. Peck is a native of Boston, Massachusetts and is married with three daughters. Mr. Peck graduated cum laude with a Bachelor of Arts degree in Economics from Harvard College. He received his Juris Doctor degree from Boston College Law School.

Mr. Peck is licensed to practice law in Illinois, New York, Massachusetts, Florida and six federal jurisdictions, including the United States Supreme Court and the United States Tax Court.

Mr. Peck has been involved in the estate and tax planning field for over 19 years and is devoted full time to the practice of estate planning. He is a member of the Illinois Forum of Estate Planning Attorneys as well as Wealth Counsel, a nationwide group of attorneys committed to bringing their clients the finest estate planning advice and documentation possible. Additionally, he is a member of Elder Counsel, which is devoted to the practice of elder law and special needs planning. Mr. Peck is also listed in Nationwide Register’s, Who’s Who in Executives and Businesses.

Mr. Peck has presented several hundred seminars on the topic of estate planning for the public and various private organizations across the country. He was also a faculty member for National Business Institute’s professional education seminar “Handling the Generation-Skipping Transfer Tax”.

Prior to estate planning law Mr. Peck practiced real estate development law and spent four years active duty as a captain in the U.S. Army Judge Advocate General’s Corps. Additionally, he has a substantial knowledge of the insurance field having spent several years as an insurance broker prior to practicing law.

Answer:  If you are an elder care professional and you would like to "get the word out to thousands of families across America in a cost effective way about how you can help them plan for and deal with their issues of aging", then you should join our 1,250 elder care experts as a lifetime member of the national ElderCare Matters Alliance.  And, now, if you are one of the next 250 members, you will receive a 25% discount off the regular lifetime membership price.

This 25% discount is available only to the next 250 elder care professionals who join the national ElderCare Matters Alliance.

So if you are a competent, caring elder care professional – take advantage of this special 25% discount offer and pay only $337.50 for a "lifetime membership" (and there are no annual membership dues, ever!) to the national ElderCare Matters Alliance.

To request an Application for Lifetime Membership, send an email directly to: psanders@eldercarematters.com

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters, LLC
1-877-379-4500
www.ElderCareMatters.com

Answer:  Although the home generally remains an exempt asset while the Medicaid recipient is still living, it becomes a countable, or recoverable, asset after the recipient dies. In other words, states have the right to recoup Medicaid-financed long-term care costs incurred on behalf of the recipient from the equity interest in the individual's home upon death, along with any other assets in the estate. States recoup these costs through the administrative vehicle of estate recovery programs. In these cases, the recipient’s heirs must pay off Medicaid’s claim in order to receive a clear title to the property. Heirs who lack the means to settle the Medicaid claim may either obtain a loan or mortgage to keep the home in the family or sell the property and use proceeds of the sale to reimburse Medicaid for expenses paid on behalf of the recipient.

To locate an Elder Law Attorney in your state who can help you with this type of elder care matter, log on to:  www.ElderCareMatters.com/statechapters.htm

Shelley A. Elder, Esq.
Elder Law Firm, PLLC
Kennesaw, Georgia  30152
404-783-2244
Member of the national ElderCare Matters Alliance, Georgia chapter

 

If you are an elder care professional and you would like to "get the word out to thousands of families across America in a cost effective way about how you can help them plan for and deal with their issues of aging", then you should join our 1,250 elder care experts as a lifetime member of the national ElderCare Matters Alliance.  And, now, if you are one of the next 250 members, you will receive a 25% discount off the regular lifetime membership price.

This 25% discount is available only to the next 250 elder care professionals who join the national ElderCare Matters Alliance.

So if you are a competent, caring elder care professional – take advantage of this special 25% discount offer and pay only $337.50 for a "lifetime membership" (and there are no annual membership dues, ever!) to the national ElderCare Matters Alliance.

To request an Application for Lifetime Membership, send an email directly to: psanders@eldercarematters.com

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters, LLC
1-877-379-4500
www.ElderCareMatters.com

Answer:  The experts of the national ElderCare Matters Alliance.

ElderCareMatters.com is now offering a NEW Ask an Elder Care Expert service.

Each week one of our 1,200 experts will answer your family's important questions about elder care matters – from legal, financial, housing, health care, etc.

If you would like to ask one of our Elder Care Experts a question about his/her areas of expertise, just send a short email (a few sentences only please) to:  Questions@ElderCareMatters.com

Every day we will post one of your questions along with an answer provided by our Featured Elder Care Expert of the Week to the homepage of www.ElderCareMatters.com (which is currently visited by thousands of families each week).  Yours may be one of the questions posted.

So bookmark www.ElderCareMatters.com and visit us daily as questions about a wide range of elder care matters are answered by some of America's top elder care professionals with years of experience helping families plan for and deal with their issues of aging.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters
1-877-379-4500
www.ElderCareMatters.com

Answer:  Unfortunately under Medicaid regulation, it is any transfers that can disqualify you as a MassHealth applicant, even if they are legal under tax law.

Susana Lannik, Attorney at Law
Lannik Law, LLC
Newton, Massachusetts  02458 
617-658-2980
Member of the national ElderCare Matters Alliance, Massachusetts chapter

Answer:  Medicaid will look  back  for 5 years,  but that does not mean she is ineligible for five years.   The ineligibilty or penalty period is determined  by dividing the amount transferred, which would be the assessed  value of the house,  by the average  monthly  rate  of a nursing home in  your region. The trust  is the owner of the home and would be responsible for  the bills, so when the trust  is set up, make sure  it has funds, either  in cash or  in   stocks/bonds, that can be quickly converted to cash.

If you have further questions about Medicaid, I would suggest that you locate an Elder Law Attorney in your state by going to the ElderCare Matters website at www.ElderCareMatters.com/statechapters.htm

Sonya Mittelman, Attorney at Law
Bronx, NY  10461
718-863-4647
Member of the national ElderCare Matters Alliance, New York chapter

The ElderCare Matters Alliance is a national organization of 1,200 elder care experts who help families across America plan for and deal with their issues of aging, including providing families with a host of elder care resources that can be found on www.ElderCareMatters.com

If you are a competent, caring elder care professional – you need to belong to the national ElderCare Matters Alliance.

To request a Lifetime Membership Application to the national ElderCare Matters Alliance, send an email to psanders@ElderCareMatters.com

www.ElderCareMatters.com – America's online source for elder care experts who help families plan for and deal with their issues of aging.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters
www.ElderCareMatters.com

Answer:  There is a variety of legal methods that can be used to prevent an elderly couple's entire net worth from being consumed by nursing home expenses.

First of all, Medicare does not pay for nursing home expenses.  It covers things like doctor visits, drugs, and a certain amount of hospitalization.  Medicare is a "status-based" benefit, which means that all your parents have to do qualify is turn 65.  It makes no difference how much they have in terms of income and assets.  As each of them turns 65, that person qualifies for Medicare.

Medicaid, on the other hand, is a "means-based" benefit, which means you have to qualify for it based on how much you have in the way of income and assets.  Although Medicaid is mostly funded by the Federal government, the States, who administer the program, are given a certain amount of leeway in setting the income and asset caps.  Different States also interpret and apply some of the other rules differently from each other, so it is important for you to seek State-specific advice.  The best we can offer here is general information.

The Federal guidelines set ranges of allowable income and asset caps, the most liberal being that a couple (where only one spouse needs nursing home care) may keep a total of $2,789 in monthly income, and they may own a house (having no more than $750,000 of equity), a car, household furnishings, a funeral plan, life insurance with a cash value of no more than $1,500, and $111,560 worth of other assets.  Note that these numbers are all maximums.  Many States are not this generous.

If the couple exceeds the Medicaid income cap, they are not necessarily disqualified from receiving Medicaid benefits.  Their "excess" income must be used to pay nursing home expenses, and Medicaid can kick in on nursing home expenses that are over and above the "excess" income amount.

If the couple's holdings exceed the asset limit, they are disqualified from receiving Medicaid benefits.  Accordingly, many of the acceptable Medicaid planning strategies involve "converting" nonexempt assets into exempt assets.  For example, if a couple lives in a State that allows the maximum asset amounts listed above, but has $200,000 worth of "other" assets, they will not qualify for Medicaid.  However, if their home has an equity of only $400,000, and if the "other" assets consist of cash, the couple can invest $88,440 ($200,000 minus $111,560) in such things as home improvements and furnishings, funeral plans, and a car, in order to bring their holdings within the asset cap.

Other legal strategies may be available as well.  In order to get a definitive answer in your jurisdiction, you need to consult a Medicaid expert in your State.  One excellent way to locate these kinds of resources is through http://www.eldercarematters.com/statechapters.htm, where you may find a listing of advisors in your locale.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
808-587-8227
Member of the national ElderCare Matters Alliance, Hawaii chapter

Answer:  Medicaid is a Federal/State program where the Federal government puts up most of the money, and the States administer how the money is spent.  The States must follow Federal law and regulations, but the law and regulations allow for some leeway in how different rules are interpreted and applied in given situations.  Thus, Medicaid is administered differently from State to State, and it is important to consult a Medicaid expert in your State any time you need accurate information.

That being said, the proceeds from a reverse mortgage may be “countable” as long as they remain in cash and as long as the amount of cash exceeds the amount that an individual or couple may possess without undermining Medicaid eligibility.  The law allows States to set that amount within a range prescribed by Congress.  Some States opt for the maximum amount, some for the minimum, and some opt for a level in between the allowable extremes.

Where an individual or couple owns “excess” cash, often they can spend the cash on exempt assets in order to bring themselves within the prescribed limit.  Thus, for example, if a State allows a couple to have $111,560 in cash but they have $150,000 in reverse mortgage proceeds sitting in the bank, they can spend enough of the cash on exempt assets to bring themselves within the $111,560 limit.

Exempt assets may include such things as their home, a car, normal household furniture and appliances, a funeral plan, a burial plot, and life insurance with a cash value of no more than $1,500.  Thus, if some of the reverse mortgage proceeds are spent on needed improvements to the home (to make it more habitable for the spouse that is not entering a nursing home), on a car (no Ferraris, please), or on typical household furnishings, they can essentially turn nonexempt cash into exempt property.  Note that various States have different caps on the amount of home equity will be considered exempt, and a reverse mortgage can be used to convert excess equity into other kinds of exempt assets in order to assure that the home will be exempt.

As you can see, the rules can be complex and they vary from State to State, so it would be to your advantage to consult a Medicaid expert in your State.  Have a look at http://www.eldercarematters.com/statechapters.htm for a link to experts in your locale.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
808-587-8227
Member of the national ElderCare Matters Alliance, Hawaii chapter

Answer:  Medicaid is a program for medical-care coverage to the indigent.  Eligibility for Medicaid is determined based upon the assets and income of the applicant and applicant spouse.  Medicaid provides long term care benefits to those who qualify both medically and financially.

Medicare is an entitlement program based on whether a worker or their spouse paid adequately into the system during their lifetime.  Medicare generally covers hospitalization, durable medical equipment, hospice, and doctor's visits.

Medicare will pay for only 20 days of nursing home care after hospitalization.  It can cover an additional 80 days, but only after the individual has paid a daily co-payment.  Medicare will not pay for nursing home care after 100 days , no matter what.

Yvette N. Banker, Attorney at Law
Banker Law Office
Scottsdale, Arizona  85254
480-626-0182
Member of the national ElderCare Matters Alliance, Arizona chapter

Answer:  Medicaid is a program for medical-care coverage to the indigent. Eligibility for Medicaid is determined based upon the assets and income of the applicant and applicant spouse.

Medicare is an entitlement program based on whether a worker or their spouse paid adequately into the system during their lifetime. Medicare generally covers hospitalization, durable medical equipment, hospice, and doctor's visits.

Yvette D. Banker, Attorney at Law
Banker Law Office
Scottsdale, Arizona  85254
480-626-0182
Member of the national ElderCare Matters Alliance, Arizona chapter

Answer:  Medicaid is very state specific in what asset protection techniques work and what techniques do not work. One technique that works in some states, which has been approved by two federal courts and some state courts, is for the healthy spouse to take the excess assets and purchase a single premium immediate payout annuity that pays a monthly check solely to the healthy spouse. This converts what had been excess assets of the couple to income belonging solely to the healthy spouse and this income is hers to keep and need not be spent on the ill spouse’s care.

In a lawsuit filed by the law firm Czepiga Daly Dillman of Newington, Connecticut, U.S. District Court Judge Janet C. Hall ruled on August 13, 2010 that a Connecticut resident did not have to sell an annuity she had purchased in order to have her husband qualify for Medicaid coverage. Attorneys Brendan F. Daly and Paul T. Czepiga, two of the elder law attorneys who argued the case on behalf of their client, noted that the decision affirms the use of annuities to convert assets to much-needed income for many older Connecticut residents who qualify for Medicaid.

In that lawsuit, the husband had been confined to a nursing home since November 2008.  The couple had $166,000 more of countable assets than permitted by Medicaid law. In order to qualify her husband for Medicaid, the wife purchased a single premium immediate annuity for $166,000 in order to provide her with a fixed monthly income. That annuity purchase also reduced her countable assets to less than the $109,560 that the state of Connecticut allows in order to qualify for Medicaid.

 The state of Connecticut contended that the wife should sell the annuity’s income stream for a lump sum, even though such a sale would have netted only about $98,000 and even though the annuity was irrevocable. In fact, such a sale was not possible because the contract under which the annuity was created prohibited any such assignment. It was the state’s position that if the annuity income could be sold, even at a loss, the wife would be over the $109,560 asset limit and her husband would not, consequently, be eligible for Medicaid.

CzepigaDalyDillman, LLC contended that federal law exempts her annuity’s fixed income in determining her husband’s eligibility for Medicaid benefits. In other words, what had been $166,000 of countable assets was, through the purchase of an immediate payout annuity that complied with federal Medicaid rules, converted to exempt income for the wife's sole benefit.

 Judge Hall ruled as unconstitutional Connecticut’s policy of trying to force a healthy spouse (whose husband or wife is in a nursing home) to sell the income stream produced by the healthy spouse’s annuity.

Paul T. Czepiga, Esq., CELA
Czepiga & Daly, LLC
Newington, Connecticut  06111
860-594-7995
 
 

Answer:  In addition to the benefit of substantially reduced nursing home care, Medicaid can also cover Medicare copayments and deductibles, medical supplies and equipment, and depending on the State, coverage can also include dental care, optometry, foot care, dentures, eyeglasses, and other needs.

David Paul Pollan, Esq.
The Pollan Law Firm
Atlanta, Georgia
678-510-1358

Answer:  As with any legal question, the short answer is "it depends."  First of all, you need to consult with an attorney in your state, because each state has some different rules.  In general, gifts to third person on behalf of your grandchildren would be considered a gift and included in the look back, but only if you made the "gift" after February 8, 2006.  That is the date on which the time for looking back changed from three years to five years.  In addition, did you make a loan to the child with a promissory note?  Did you pay from a trust that is protected from Medicaid recovery?  What assets did you use to pay the tuition? Are you the legal guardian of the grandchild?  Is the grandchild disabled in some way? In your state, are you allowed to remove money from a reverse mortgage on your home without a penalty? All of these elements are included in the decision as to whether a tuition payment is a gift.

Unfortunately, there is not a simple answer when it comes to Medicaid.  You would do well to sit down with a lawyer in your state who can be more specific regarding your situation in your location.

Rose Mary Zapor, M.A., J.D.
Elder Law / Mediation
Denver, Colorado  80221
303-881-6354
 

Answer:  Gifts to children will not be required to be turned over to the nursing home or assisted living facility.  However, gifts may cause a disqualification for Medicaid benefits.  If an application for Medicaid occurs within 60 months of the date of the gifts, then those gifts will cause the Medicaid agency to impose a divestment penalty.  During a period of penalty, your mother-in-law would be unable to receive Medicaid benefits to pay for nursing home or home and community based waiver services (in the assisted living facility).  Gifts made before applying for VA benefits generally will not cause a disqualification as long as no gifts are made to a family member who the claimant lives with.  If your mother-in-law served in the military during wartime or if she is the surviving spouse of a wartime veteran she may be eligible for a VA pension.  Veterans can receive up to $1,644 per month to help pay for the cost of care (including assisted living or nursing home).  A surviving spouse can receive up to $1,056 per month. 

Sanford J. Mall, Esq., CELA
Mall Malisow & Cooney, P.C.
Farmington Hills, Michigan  48334
248-538-1800
 

Answer:  The easiest way to find out the information that you are seeking is to call the Agency for Health Care Administration in Tallahassee at (888) 419-3456.  They should be able to give you up-to-date information about Medicaid approved facilities and assisted living facilities anywhere in the state.

I. Michael Tucker, Attorney at Law
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida  32701
407-977-8836