K. Gabriel Heiser
Attorney, author, Medicaid asset protection planning
K. Gabriel Heiser, J.D., is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.
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Question
My uncle is in a nursing home under Medicaid. He just got awarded a monthly VA disability check. Must this b...
If a VA Pension recipient, with no spouse or child, is a patient in a nursing home and has qualified for Medicaid coverage, then the... If a VA Pension recipient, with no spouse or child, is a patient in a nursing home and has qualified for Medicaid coverage, then the Pension amount cannot exceed $90 per month, after the end of the third full calendar month following the month of admission to a VA-run (VHA) nursing home or starting with eligibility for Medicaid in a private nursing home (after the month of admission). Veterans residing in state-run veterans’ homes are exempt from this $90-per-month limit. Such $90/month payment is not considered income and does not have to be paid to the nursing home, and it is paid in addition to the personal needs allowance. see more
Question
For Medicaid purposes how does one establish that they are the caregiver?
Regarding the two-year requirement: It is not that the house may be transferred to the caregiver after two years, but that you must be the... Regarding the two-year requirement: It is not that the house may be transferred to the caregiver after two years, but that you must be the caregiver for at least two years immediately prior to your parent entering the nursing home, where your care was medically necessary to delay your parent needing to go there. Thus, accurate and timely records of what services you supplied to your mother, plus a written assessment by your physician that BUT FOR your home care your mother would definitely have to be in a nursing home, is critical. Assuming you meet the requirements, then your mother can deed the house to you without it being deemed a disqualifying gift. I have a lengthy section in my book (www.MedicaidSecrets.com) that discusses the Caretaker Child Exception in great detail. Here is the actual statutory reference, which applies to all 50 states: 42 U.S.C. §1396p(c)(2)(A)(iv). see more
Question
Does a Deed of Trust protect me from Medicaid seizing my Mom's house once she passes?
Trust law and how each state interprets estate recovery of Medicaid payments varies from state to state. However, in order for a transfer... Trust law and how each state interprets estate recovery of Medicaid payments varies from state to state. However, in order for a transfer of a house (or other property) from the Medicaid recipient to a trust to offer protection from estate recovery, the trust must be carefully drafted. For instance, in some states if the Medicaid recipient retains an income interest, the trust will still be deemed an available asset, while in other states it will not. In some states only "probate" assets are subject to estate recovery while in other states trust property, joint property, and even life estates are subject to estate recovery.
Since I am not licensed to practice law in Texas, I am not able to give you a specific answer, which in any case would require me to review the trust in question. Thus, I echo what others here have said, that you need to consult with an experienced elder law attorney in Texas with Medicaid knowledge. see more
Since I am not licensed to practice law in Texas, I am not able to give you a specific answer, which in any case would require me to review the trust in question. Thus, I echo what others here have said, that you need to consult with an experienced elder law attorney in Texas with Medicaid knowledge. see more
Question
Anyone have knowledge how Medicaid views joint checking accounts?
Medicaid views 100% of the money in a joint checking account where one of the owners is the Medicaid applicant, as owned by the Medicaid... Medicaid views 100% of the money in a joint checking account where one of the owners is the Medicaid applicant, as owned by the Medicaid applicant except to the extent you can prove otherwise. So you would have to trace any money you added to the joint account in order for Medicaid to view the joint account as anything other than your father's account.
If it is your wife you are applying for, then Medicaid will count 100% of the account as YOUR money, except to the extent you can prove contribution to the account by your father. That's because when one member of a married couple applies for Medicaid, all the assets of both spouses, regardless of how titled, are considered by Medicaid. see more
If it is your wife you are applying for, then Medicaid will count 100% of the account as YOUR money, except to the extent you can prove contribution to the account by your father. That's because when one member of a married couple applies for Medicaid, all the assets of both spouses, regardless of how titled, are considered by Medicaid. see more
Question
Who is it that requires an in-home caregiver agreement, is it Medicaid, the State or who?
Clearly it is always better to obtain reimbursement checks close to the time of your outlay on behalf of the future Medicaid applicant. As... Clearly it is always better to obtain reimbursement checks close to the time of your outlay on behalf of the future Medicaid applicant. As for caregiving, there reimbursing for past care will not avoid it being counted as a gift; there are a number of state court cases that so hold, with the reasoning being that the services--rendered by a family member--were done out of love and not with the expectation of reimbursement. Hence it is important to have a Caregiver Contract in place BEFORE the care is provided and a resulting payment to the caregiver.
For other items such as you mentioned, a state could also take that position, that the items were furnished out of love and a delayed reimbursement is now a gift. You would have to argue with the state why you were not paid on the spot, as a normal business transaction would have insisted upon. see more
For other items such as you mentioned, a state could also take that position, that the items were furnished out of love and a delayed reimbursement is now a gift. You would have to argue with the state why you were not paid on the spot, as a normal business transaction would have insisted upon. see more
Question
Who is it that requires an in-home caregiver agreement, is it Medicaid, the State or who?
You certainly don't "need" a Caregiver Agreement, but without one in place PRIOR TO any payments to a family member... You certainly don't "need" a Caregiver Agreement, but without one in place PRIOR TO any payments to a family member caregiver, such payments will be deemed gifts by the state Medicaid authority, resulting in a penalty (disqualification) period if the cared-for person applies for Medicaid within the next 5 years. Different states have different requirements as to what must be in the contract for it to be valid in this context. (I actually have a very detailed discussion of this in my book, with citations to some legal cases in a few states.) see more
Question
Mom has no assets. Her monthly SS and pension over-qualify her for Medicaid. Any advice?
In some states, so long as you first spend down her income for medical (and nursing home) bills each month, Medicaid will pick up the... In some states, so long as you first spend down her income for medical (and nursing home) bills each month, Medicaid will pick up the balance. In other states, you must set up a Qualified Income Trust (also known as a "Miller Trust"), into which her monthly income passes. The trustee of that trust then simply pays out that income to the nursing home, and once again Medicaid will pick up the monthly shortfall via a payment to the nursing home. So in either case, you should be ok, regardless of the rules of the state you are in. Good luck!! see more
Question
Can you or do you apply for Medicaid before you actually need it?
If a facility accepts Medicaid patients, then such facility cannot evict a private-pay patient who later switches to Medicaid. However,... If a facility accepts Medicaid patients, then such facility cannot evict a private-pay patient who later switches to Medicaid. However, there are many facilities that do not accept any Medicaid patients (i.e., they are ONLY private pay); in such facilities, if the patient runs out of money and needs to apply for Medicaid, the patient must then move to a Medicaid-accepting nursing home. Thus, it is VERY important to find out before the patient enters a nursing home if it accepts Medicaid payments (assuming that is a possibility in the future). Hope that clarifies the rules! see more
Question
What happens if I cannot account for parent's expenses when applying for Medicaid?
The state is fishing around for evidence of gifts (typically to family members). If his money was spent on HIM, then the state will not... The state is fishing around for evidence of gifts (typically to family members). If his money was spent on HIM, then the state will not penalize such expenditures. Hopefully you can still obtain copies of bank statements going back at least a year. You won't be denied Medicaid if the records were out of your control and cannot now be located. Your statement under oath will suffice. see more
Question
Can you or do you apply for Medicaid before you actually need it?
As the other posters here have commented, it is important to make sure you understand the rules and get your paperwork in order before you... As the other posters here have commented, it is important to make sure you understand the rules and get your paperwork in order before you apply for Medicaid, particularly if the applicant has made any gifts within the prior 5 years. However, you will not be granted Medicaid benefits unless at the time of application there is a real financial as well as medical need for such assistance. As such, although you can apply months before such financial need exists, with the thought that it will "kick in" once you really need it, Medicaid will be denied and you will have to apply again later once the actual need begins. see more
Question
When person dies, does Medicaid expect to be paid for the home health care out of the proceeds of the house wh...
Indeed, under federal law the state can only make a claim against property in which the deceased Medicaid recipient had a legal interest at... Indeed, under federal law the state can only make a claim against property in which the deceased Medicaid recipient had a legal interest at the time of death. So if the house was sold or given away before then, the state cannot go after it (unless they had already placed a lien on it). See 42 U.S.C. 1396p. see more
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When person dies, does Medicaid expect to be paid for the home health care out of the proceeds of the house wh...
Reimbursement via "estate recovery" for payments the state made under Medicaid for a person's care are only sought for the... Reimbursement via "estate recovery" for payments the state made under Medicaid for a person's care are only sought for the period when the individual was institutionalized (or, if non-institutionalized, at least age 55). see more
Question
If my son's on a deed for a mobile home with an elder friend will Medicaid take it if she goes into NH?
The Caretaker Child exception you reference will not cover your son, since the elder friend is not his mother. The transfer of an interest... The Caretaker Child exception you reference will not cover your son, since the elder friend is not his mother. The transfer of an interest in the mobile home will be treated as a penalty-causing gift if the elder has to apply for Medicaid within the next 5 years.
In all states the home will be an exempt asset if the elder friend has to apply for Medicaid; however, a few states take the position that if the elder Medicaid recipient can no longer move back home, they are free to treat the house as a countable asset. If so, then she would have to liquidate the house and undertake some other Medicaid planning to reduce the cash she'd get from the sale.
As for Medicaid recovery, yes, the state can indeed make a claim against the elder's interest in the mobile home following her death, which may cause your son to have to sell the mobile home to pay off the state (depending on the size of the bill). see more
In all states the home will be an exempt asset if the elder friend has to apply for Medicaid; however, a few states take the position that if the elder Medicaid recipient can no longer move back home, they are free to treat the house as a countable asset. If so, then she would have to liquidate the house and undertake some other Medicaid planning to reduce the cash she'd get from the sale.
As for Medicaid recovery, yes, the state can indeed make a claim against the elder's interest in the mobile home following her death, which may cause your son to have to sell the mobile home to pay off the state (depending on the size of the bill). see more
Question
Can Medicaid make an estate recovery claim against a checking or savings account of deceased spouse?
A state cannot and will not go after the recipient of a gift. The most the state can do is to penalize the gift-giver if he or she applies... A state cannot and will not go after the recipient of a gift. The most the state can do is to penalize the gift-giver if he or she applies for Medicaid within 5 years of the date of the gift. see more
Question
Can Medicaid make an estate recovery claim against a checking or savings account of deceased spouse?
I guess the best the state can do is place a lien on the real estate, but many states do not permit even that. If the estate of the... I guess the best the state can do is place a lien on the real estate, but many states do not permit even that. If the estate of the pre-decease at-home spouse has been distributed or is insolvent, the state is probably out of luck when the nursing home spouse dies. It is for this reason that the vast majority of states do not have this rule, and instead simply go after the assets of the nursing home spouse, if indeed there ARE any such assets at the time of such spouse's death. see more
Question
Can Medicaid make an estate recovery claim against a checking or savings account of deceased spouse?
The state cannot make a claim against assets of the deceased spouse that never belonged to the Medicaid-recipient spouse. In a very few... The state cannot make a claim against assets of the deceased spouse that never belonged to the Medicaid-recipient spouse. In a very few states, there is a "tracing" approach that permits the state to attach assets of the at-home spouse (following their death) if such assets formerly belonged to the Medicaid-receiving spouse.
In all cases, however, note that the state must wait until after the death of the Medicaid-recipient spouse to make its claim for reimbursement/recoupment. see more
In all cases, however, note that the state must wait until after the death of the Medicaid-recipient spouse to make its claim for reimbursement/recoupment. see more
Question
What's the most a person can put into a funeral account to qualify for Medicaid?
Since the amount varies by state, you can find the list of maximum expenditures on this handy all-state table:... Since the amount varies by state, you can find the list of maximum expenditures on this handy all-state table:
http://www.medicaidannuity.com/wp-content/uploads/2014/02/2014_Prepaid_Funeral_Limitations.pdf see more
http://www.medicaidannuity.com/wp-content/uploads/2014/02/2014_Prepaid_Funeral_Limitations.pdf see more
Question
Mom on Medicaid soon. Will making a donation to the church penalize her?
Unfortunately, there are no exceptions to the transfer rules, so that even a gift to a charity or religious organization can result in a... Unfortunately, there are no exceptions to the transfer rules, so that even a gift to a charity or religious organization can result in a Medicaid penalty if the transferor applies for Medicaid within 5 years after the date of the gift. see more
Question
What legal rights do my brother and I have as joint owners of my Dad's building and his accounts?
As for the bank accounts, merely adding a joint owner does not change the characterization of the entire account as belonging 100% to your... As for the bank accounts, merely adding a joint owner does not change the characterization of the entire account as belonging 100% to your father, UNLESS the account requires the signatures of both/all joint owners. If it is an "or" account--where any named owner can write a check or withdraw money--then all the money belongs to the senior on the account, except to the extent the other owners can prove they put their OWN money into the account.
As for the real estate, different rules apply. Generally, your father's percent ownership will be an equal share of the value of the property, i.e., if he is one of three owners, he will be deemed to own one-third, etc.
In all states, the Medicaid applicant's ownership interest in his or her personal residence will be exempt for purposes of qualifying for Medicaid. But in most states the business interest will NOT be exempt; some states, however, will exempt income-producing property. So it starts to get complicated! see more
As for the real estate, different rules apply. Generally, your father's percent ownership will be an equal share of the value of the property, i.e., if he is one of three owners, he will be deemed to own one-third, etc.
In all states, the Medicaid applicant's ownership interest in his or her personal residence will be exempt for purposes of qualifying for Medicaid. But in most states the business interest will NOT be exempt; some states, however, will exempt income-producing property. So it starts to get complicated! see more
For Medicaid purposes how does one establish that they are the caregiver?