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 husband's in a NH on Medicaid. Is it possible to get that Medicaid approval for home care, and for how lon...
As mentioned, HCBS would be the Medicaid program to check into. While generally available in all states, it is not necessarily available in... As mentioned, HCBS would be the Medicaid program to check into. While generally available in all states, it is not necessarily available in all communities within a state. It is limited by geography and by number of patients, so you need to call your state Medicaid department to inquire about its availability in your area. see more
Question
Can we legally use estate money to travel to see aging/failing parent?
On a more technical/legal side, how are you going to get access to her money? Are you on her bank accounts? Or would you utilized a durable... On a more technical/legal side, how are you going to get access to her money? Are you on her bank accounts? Or would you utilized a durable power of attorney? If so, typically the person named as the "agent" under such a power may not use the money of the "principal" for their own benefit. see more
Question
Can you legally give away half of property you own to charity?
Your mother could certainly deed her 50% interest in the property to a charity and get a charitable income tax deduction. However, it would... Your mother could certainly deed her 50% interest in the property to a charity and get a charitable income tax deduction. However, it would nonetheless be counted as a gift for Medicaid purposes and would cause a long period of disqualification should she apply for Medicaid within 5 years.
There is an exception if a property is transferred to a sibling, however: There is no penalty for a transfer of a home to a sibling who has an equity interest in the home if the sibling resided in the home for at least one year immediately preceding the other sibling (i.e., your mom) entering the nursing home.
So your mom could simply wait until she enters the nursing home and then deed her interest to her sister, without penalty. To be sure this can be done, it would be adviable for your mom to sign a durable power of attorney specifically authorizing this and appointing someone else with the legal authority to sign the deed if she is unable to do so for any reason. see more
There is an exception if a property is transferred to a sibling, however: There is no penalty for a transfer of a home to a sibling who has an equity interest in the home if the sibling resided in the home for at least one year immediately preceding the other sibling (i.e., your mom) entering the nursing home.
So your mom could simply wait until she enters the nursing home and then deed her interest to her sister, without penalty. To be sure this can be done, it would be adviable for your mom to sign a durable power of attorney specifically authorizing this and appointing someone else with the legal authority to sign the deed if she is unable to do so for any reason. see more
Question
My father needs to go on Medicaid but is incapacitated and can't get rid of his life insurance. What are my op...
How much is the policy worth upon your father's death? It may be worth keeping it in force. I would first talk to the insurance company... How much is the policy worth upon your father's death? It may be worth keeping it in force. I would first talk to the insurance company and see if you can borrow against the cash value and spend that down until he qualifies for Medicaid. Without knowing the numbers of everything, it's impossible to give applicable advice, which a local attorney would of course be able to do.
If it turns out that the insurance company wants either a court-appointed guardian or conservator in place (since there is no durable power of attorney), then you will have to secure that first. You probably will need an attorney to represent you, unless your county has a streamlined process available for you to do that on your own ("pro se"). Once you are appointed by the court, you can legally borrow against the policy, etc. see more
If it turns out that the insurance company wants either a court-appointed guardian or conservator in place (since there is no durable power of attorney), then you will have to secure that first. You probably will need an attorney to represent you, unless your county has a streamlined process available for you to do that on your own ("pro se"). Once you are appointed by the court, you can legally borrow against the policy, etc. see more
Question
Hourly rate for elder law attorney?
As an elder law attorney for 25 years, I have seen charges vary quite a bit. Most elder law attorneys who charge by the hour will charge... As an elder law attorney for 25 years, I have seen charges vary quite a bit. Most elder law attorneys who charge by the hour will charge more if they are very experienced, less if they are freshly minted from law school and want to build a practice. Next factor is the going rate in the city, which is related to the overall cost of living in that city. Thus, Boston lawyers with years of experience may charge $600 an hour, while a young attorney in Kansas may charge $125 an hour.
Note that most Medicaid planning by attorneys will be charged as a flat fee for a certain package of planning services, so no hourly fees would apply to that. Often if a trust or other legal document is to be prepared for a client there will be a flat fee, since the attorney is starting with a form they have developed and updated over the years and to charge strictly for the time it takes to modify for the next client does not compensate the attorney for all the non-billed time they put in creating and updating the form and their knowledge related to the form and its application to various situations. Hence a flat fee is fairer to all concerned, for such documents.
I hope that helps. As to whether a particular charge is "too high" or not, it depends on the going rate in your area, what other similarly experienced attorneys charge, the expertise and specialized training of the attorney, and the results obtained. see more
Note that most Medicaid planning by attorneys will be charged as a flat fee for a certain package of planning services, so no hourly fees would apply to that. Often if a trust or other legal document is to be prepared for a client there will be a flat fee, since the attorney is starting with a form they have developed and updated over the years and to charge strictly for the time it takes to modify for the next client does not compensate the attorney for all the non-billed time they put in creating and updating the form and their knowledge related to the form and its application to various situations. Hence a flat fee is fairer to all concerned, for such documents.
I hope that helps. As to whether a particular charge is "too high" or not, it depends on the going rate in your area, what other similarly experienced attorneys charge, the expertise and specialized training of the attorney, and the results obtained. see more
Question
My father in-law is in need of long term care in a nursing home. How will this effect his wife who still live...
The $109,000 figure is now actually $115,920 (the federal government updates it each year to keep up with inflation). Furthermore, that is... The $109,000 figure is now actually $115,920 (the federal government updates it each year to keep up with inflation). Furthermore, that is IN ADDITION to the home the well-spouse lives in, the family car, personal property, heirlooms, personal jewelry, etc.
Also, please note that some states add up all the property of both spouses and divide by 2, then allow the at-home spouse to keep their half so long as it does not exceed $115,900. Other states do not divide by 2 and simply allow the at-home spouse to keep the first $115,900 of the couple's total assets. I have a chart in the back of my book that shows the rules for each of the 50 states, or call your local Medicaid department to find out your own state's rules in this regard. see more
Also, please note that some states add up all the property of both spouses and divide by 2, then allow the at-home spouse to keep their half so long as it does not exceed $115,900. Other states do not divide by 2 and simply allow the at-home spouse to keep the first $115,900 of the couple's total assets. I have a chart in the back of my book that shows the rules for each of the 50 states, or call your local Medicaid department to find out your own state's rules in this regard. see more
Question
If dad goes on Medicaid, will they collect the payout of his life insurance upon death? Who is responsible fo...
If the policies have no cash value, they do not have to be cashed in and Medicaid will not count them as assets for Medicaid eligibility... If the policies have no cash value, they do not have to be cashed in and Medicaid will not count them as assets for Medicaid eligibility purposes. The next question is who is the beneficiary? If it is your FIL's estate, then, yes, the state can and most likely will seek reimbursement from the proceeds following FIL's death. If a particular person is named as the beneficiary, then the state most likely will not be able to make a claim against those proceeds (this may vary by state law, so you'll need to be sure about this before deciding what to do). If your state is one of many states that only make reimbursement/recoupment claims against the probate estate of the deceased Medicaid recipient, and someone other than his estate is named as the beneficiary of the policies, then you are safe and the state cannot touch them.
Since your FIL will not be permitted to shift any of his income to keep up the premium payments once he is on Medicaid, you must decide if it is worth it to you to keep up those payments, assuming you are named the beneficiary. I hope that helps! see more
Since your FIL will not be permitted to shift any of his income to keep up the premium payments once he is on Medicaid, you must decide if it is worth it to you to keep up those payments, assuming you are named the beneficiary. I hope that helps! see more
Question
Medicaid and my mother.
If your mother takes her name off the house, it would treated by Medicaid as a gift. If she then needs to apply for Medicaid within the... If your mother takes her name off the house, it would treated by Medicaid as a gift. If she then needs to apply for Medicaid within the next 5 years, that gift would cause a period of disqualification from Medicaid coverage, i.e., a "penalty period." In addition, she would no longer have the legal right to live in her own house (unless she signed an occupancy agreement with you).
Because the available techniques to protect the house vary from state to state, the best course of action will depend on your own state's laws. I suggest you contact an elder law attorney with experience in Medicaid planning to help you figure this out and decide how best to protect the house. Good luck! see more
Because the available techniques to protect the house vary from state to state, the best course of action will depend on your own state's laws. I suggest you contact an elder law attorney with experience in Medicaid planning to help you figure this out and decide how best to protect the house. Good luck! see more
Question
Medicaid and life insurance payout. Is there a way to avoid making the claim so my aunt doesn't lose Medicaid...
You are correct that if the boyfriend dies and your aunt receives the money it will cause her to be disqualified from Medicaid until that... You are correct that if the boyfriend dies and your aunt receives the money it will cause her to be disqualified from Medicaid until that money is spent down or otherwise converted into non-countable assets. A better alternative is for the policy proceeds to be paid to a trust for her benefit, with language that prevents the money from causing her any Medicaid problems. Such a trust must include "supplemental needs" language; any good elder law attorney will know how to prepare this for the boyfriend. Once it is signed, the policy is changed to name the trustee of that trust as the beneficiary. see more
Question
To spend down assets, can I count the rent for two months to vacate, moving expenses, etc?
The parent's own money can safely be used on anything for their own benefit without it causing any Medicaid problems. In other words,... The parent's own money can safely be used on anything for their own benefit without it causing any Medicaid problems. In other words, it cannot be a gift if the person's own money is spent to benefit themselves. It is only when the money is spent on someone else that it CAN cause a problem (and indeed, if there is a Personal Services Contract, a parent can legally hire a child to care for them to avoid the gift trap). I hope this helps! see more
Question
If my dad sells his insurance policies, can he use it to pay bills and then get Medicaid?
There are two options: (i) he can borrow against the policy, thereby reducing the cash value of the policy. Since Medicaid only counts the... There are two options: (i) he can borrow against the policy, thereby reducing the cash value of the policy. Since Medicaid only counts the cash value, he can reduce the value this way. (ii) he can sell the policy. In this case, you have to watch out for the transfer-for-value rule, which states that if someone purchases someone else's life insurance policy, when the proceeds are paid out, they will be taxed as ordinary income (normally life insurance proceeds are not taxed). One way to avoid this is to make the transfer partly a gift and partly a sale; this can be accomplished by paying less for the policy than it is worth (ask the insurance company for the value via a Form 712). Note, however, that the amount paid must be LESS than the insured's basis in the policy; you will need to get that number from the insurance company, too. Thus, the smaller the amount paid, the better, though that will increase the penalty period for Medicaid purposes. see more
Question
Are there provisions through Medicaid made for caregivers in regards to funds used in taking care of a parent?
To Wyndle: If your parent has dementia and cannot sign the caregiving contract, you should be able to do so as "agent" under the... To Wyndle: If your parent has dementia and cannot sign the caregiving contract, you should be able to do so as "agent" under the parent's power of attorney (POA). Make sure it is a "durable" POA, i.e., it is still effective even if the parent who signed it becomes incapacitated. see more
Question
Mom is in home. Greedy sister want to rent house and sell after mom dies. I want to sell it for mom's care,...
First of all, your mom can qualify for Medicaid even if she continues to own the house, since it would be an exempt asset--at least... First of all, your mom can qualify for Medicaid even if she continues to own the house, since it would be an exempt asset--at least initially. So, you need to find out if the rule in your state would allow for the house to continue to be exempt for the rest of her life or if it may be forced to be sold if a physician determines can never return there (there's a split on states on this).
Even if the house will always be exempt, the state will file a claim for the Medicaid it paid to the nursing home during your mother's life, following her death. They cannot seek reimbursement out of the children's assets, only from your mother's assets, i.e., the house.
If your sister sells the house, the money is still your mother's, and she will have too much money to qualify for Medicaid (which has a limit of $2,000 for a single person). It will be possible to do some "Medicaid planning" to protect most of that money, which is what I discuss in my book "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets."
I don't see how your sister is correct if she is saying your mother will be on Medicaid after two years, if the house is sold, for the above reasons. see more
Even if the house will always be exempt, the state will file a claim for the Medicaid it paid to the nursing home during your mother's life, following her death. They cannot seek reimbursement out of the children's assets, only from your mother's assets, i.e., the house.
If your sister sells the house, the money is still your mother's, and she will have too much money to qualify for Medicaid (which has a limit of $2,000 for a single person). It will be possible to do some "Medicaid planning" to protect most of that money, which is what I discuss in my book "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets."
I don't see how your sister is correct if she is saying your mother will be on Medicaid after two years, if the house is sold, for the above reasons. see more
Question
Is there a cap for bills paid out of pocket?
If she paid the money to get out of the lease, that would be for her own benefit. If the moving is for her benefit and it's her POA,... If she paid the money to get out of the lease, that would be for her own benefit. If the moving is for her benefit and it's her POA, then all of these are not gifts. A gift benefits someone other than the gift-giver. So if the individual spends her own money to benefit herself and not someone else, then it is not a gift, and can be part of a legitimate spenddown. see more
Question
Is there a cap for bills paid out of pocket?
Any expenditures that are for the benefit of the Medicaid applicant are permitted. When you run into trouble is if a parent gives money to... Any expenditures that are for the benefit of the Medicaid applicant are permitted.
When you run into trouble is if a parent gives money to a child or pays a child's bills, etc. Then such transfers are considered gifts, and can cause a period of disqualification from receiving Medicaid, i.e., a penalty period, assuming the applicant applies for Medicaid within the next 5 years. see more
When you run into trouble is if a parent gives money to a child or pays a child's bills, etc. Then such transfers are considered gifts, and can cause a period of disqualification from receiving Medicaid, i.e., a penalty period, assuming the applicant applies for Medicaid within the next 5 years. see more
Question
"Spending down" to Medicaid good or bad?
Hi: The entire point of my book "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets"... Hi: The entire point of my book "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets" is to help people in your mother's situation from needlessly "spending down" their assets. There are many ways to conserve that money so that it would be available to benefit your mother in future years, but the sooner you act the more of her money you can protect. Because there are many options to consider, I recommend you review the book. I am sure you will find many practical and helpful suggestions there. Best of luck with everything! see more
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Attorney said nothing can be done to change POA. Is that true?
The POA cannot be changed once the signer (grandmother, in this case) is no longer legally competent. However, your mom or other interested... The POA cannot be changed once the signer (grandmother, in this case) is no longer legally competent. However, your mom or other interested party can petition the local probate court to be appointed as legal guardian of your grandmother. A hearing will be held to sort out what is going on and who should be guardian. After the guardian is appointed, their power trumps that of the POA agent, i.e., your aunt. So, if your mother is appointed legal guardian by the court, then the POA would no longer be valid, as a practical matter. see more
Question
Will my mother still be eligible for Medicaid if I claim her on my taxes?
To Jelaine: The state of Texas will file a claim against the house in the amount of the money it spent under the Medicaid program for your... To Jelaine: The state of Texas will file a claim against the house in the amount of the money it spent under the Medicaid program for your grandmother's nursing home care. If there is any money left over after the sale of the house and the repayment to the state, it would go to her heirs or via her will. see more
Question
What monies can be spent of the elderly family member in a spend down period?
Any amounts can be spent on home improvements or repair. Paying travel expenses of family members, however, would most likely be viewed as... Any amounts can be spent on home improvements or repair. Paying travel expenses of family members, however, would most likely be viewed as a gift to them and therefore subject to the five-year lookback period and transfer penalties. see more
Can someone explain what the 5-year "look back" period for Medicaid is?