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
Can Medicaid take your parent's home to pay for nursing care if the caregiver is joint owner?
There are two rules that affect the answer to your situation: First, if you care for your mother for the two years prior to her entering a... There are two rules that affect the answer to your situation: First, if you care for your mother for the two years prior to her entering a nursing home such that your care enables her to delay going into a nursing home, then she can transfer her joint interest to you (by deed) after she is in the nursing home without penalty. That, of course, would protect it forever from any Medicaid claims by the state for your mother's care.
Secondly, remember that during your mother's life her primary residence will be exempt for Medicaid eligibility purposes but the state could possibly come after her joint interest upon her death, up to the amount of care it provided for her. However, many states will not go after a joint interest that passes by "right of survivorship" to you (this would be spelled out in the deed). If you live in one of these states--and the deed is worded correctly--then the house will be protected following your mother's death, even if still partially in her name. see more
Secondly, remember that during your mother's life her primary residence will be exempt for Medicaid eligibility purposes but the state could possibly come after her joint interest upon her death, up to the amount of care it provided for her. However, many states will not go after a joint interest that passes by "right of survivorship" to you (this would be spelled out in the deed). If you live in one of these states--and the deed is worded correctly--then the house will be protected following your mother's death, even if still partially in her name. see more
Question
My husband may need to go to a nursing home. If this happens would I be able to have any of his pension or Med...
A good place to start would be to read a book that explains the basic rules. Then you probably will want to consult an experience elder law... A good place to start would be to read a book that explains the basic rules. Then you probably will want to consult an experience elder law attorney, one that is familiar with your state's Medicaid laws. One source to check out would be my own book, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets". Many people have said it has been very helpful to them understanding the complex Medicaid system. Best of luck in this difficult time for you! see more
Question
My husband may need to go to a nursing home. If this happens would I be able to have any of his pension or Med...
Under Federal Medicaid law, the at-home spouse is always entitled to a MINIMUM of $1,821/month of income, so that if your income is less... Under Federal Medicaid law, the at-home spouse is always entitled to a MINIMUM of $1,821/month of income, so that if your income is less than that, you are entitled to have some of your husband's income shifted over to you to bring you up to that level. Indeed, if your expenses are higher, you can even adjust that up to a maximum of $2,739 (or higher, in rare cases where you go to court for additional support). see more
Question
My parents have approximately $100k in savings. How much of that is subject to spend down for Medicare?
I believe you mean "Medicaid" not Medicare. Medicare has no means-testing requirements, which means that you can have any amount... I believe you mean "Medicaid" not Medicare. Medicare has no means-testing requirements, which means that you can have any amount of income or assets and still qualify. Medicaid, though, has strict limits. A married couple can protect $111,560 of countable assets, so it looks like your folks should be okay! see more
Question
Is having Dementia enough to qualify for Medicaid/Medicare assistance to pay for nursing home care?
In most states it is possible to receive Medicaid assistance even if living at home or in an assisted living facility, under the "Home... In most states it is possible to receive Medicaid assistance even if living at home or in an assisted living facility, under the "Home and Community Based Services" program. You should check with the Medicaid department in your state (contact list available here: www.MedicaidSecrets.com/updates).
Since your mother needs round-the-clock care, I'm surprised she won't qualify for Medicaid. So you need to verify what the nursing home is telling you! see more
Since your mother needs round-the-clock care, I'm surprised she won't qualify for Medicaid. So you need to verify what the nursing home is telling you! see more
Question
Should I consult an attorney when applying for Mediaid for my 89-year-old mother to cover her stay in a nursin...
If you sold the house for $30,000, you could certainly take some of that proceeds and pre-pay for your mother's funeral and burial. You... If you sold the house for $30,000, you could certainly take some of that proceeds and pre-pay for your mother's funeral and burial. You could even purchase a car in her name if it is used to drive her to visit family members or doctor's appointments, or even occasional day trips, that auto would be excluded, too. see more
Question
Should I consult an attorney when applying for Mediaid for my 89-year-old mother to cover her stay in a nursin...
It sounds like your mother would definitely qualify for Medicaid now, based on her low assets and income. The house is exempt while she... It sounds like your mother would definitely qualify for Medicaid now, based on her low assets and income. The house is exempt while she lives, but can be attached by the state for recoupment of the money it spends on your mother (under Medicaid) following her death. At that point it will be too late to claim reimbursement for upkeep, unless you file annually updated liens against the house for such debts.
If your brother purchases the house, then your mother would have to spend down or otherwise reduce her assets down to $2,000. It is possible that she can hire your brother for extra personal services, under a personal services contract, as a way to reduce or eliminate the extra cash. In some states she could pay his a lump sum in exchange for a promise of lifetime care; I am not familiar with whether PA allows this or not, so you'd need to check with the state or an elder law attorney on that point.
There are other possible ways to protect her assets, which I discuss in my book, Medicaid Secrets. Best of luck to your family! see more
If your brother purchases the house, then your mother would have to spend down or otherwise reduce her assets down to $2,000. It is possible that she can hire your brother for extra personal services, under a personal services contract, as a way to reduce or eliminate the extra cash. In some states she could pay his a lump sum in exchange for a promise of lifetime care; I am not familiar with whether PA allows this or not, so you'd need to check with the state or an elder law attorney on that point.
There are other possible ways to protect her assets, which I discuss in my book, Medicaid Secrets. Best of luck to your family! see more
Question
Is having Dementia enough to qualify for Medicaid/Medicare assistance to pay for nursing home care?
Hi: Yes, your mother definitely sounds like she should qualify for Medicaid. The nursing home should be able to help you get the papers... Hi: Yes, your mother definitely sounds like she should qualify for Medicaid. The nursing home should be able to help you get the papers from the state and fill them out, or you can contact the state directly. I have listed all the state contacts for the 50 states here: MedicaidSecrets.com/updates. Good luck! see more
Question
My mother doesn't qualify for Medicaid. How can we get help for her care?
While it is true that in most states the former home of a nursing home residence can be attached by the state to repay its Medicaid bill... While it is true that in most states the former home of a nursing home residence can be attached by the state to repay its Medicaid bill after the nursing home patient dies, there is a different rule in Florida. In FL, the home is protected and will not be attached by the state either during life or after death! see more
Question
My 86-year-old widowed mother has no trust or will. How necessary is it at this point?
Hi: If your assets and family situation are straightforward, many attorneys will be able to draft a good will for you. If it's more... Hi: If your assets and family situation are straightforward, many attorneys will be able to draft a good will for you. If it's more complex or a larger estate, then you should look for an attorney that specializes in "estate planning." The best ones are found here: www.ACTEC.org. You can search by zip code. Another site to find elder law attorneys is this site: www.NAELA.org. Good luck! see more
Question
I am confused about Medicare, Medicaid and Private Insurance benefits. Where do I start?
Yes, it definitely sounds like she needs skilled care, based on my reading of the Medicare regulations. Based on the "100-Day... Yes, it definitely sounds like she needs skilled care, based on my reading of the Medicare regulations.
Based on the "100-Day Limit" paragraph, above, it appears that she would have to be neither an inpatient of a hospital nor an inpatient of a nursing facility for at least 60 days before the next 100-day period can start. see more
Based on the "100-Day Limit" paragraph, above, it appears that she would have to be neither an inpatient of a hospital nor an inpatient of a nursing facility for at least 60 days before the next 100-day period can start. see more
Question
I am confused about Medicare, Medicaid and Private Insurance benefits. Where do I start?
If your mother can qualify for Medicaid, that could be good. Medicaid will pay for all her medical costs as well as room and board at a... If your mother can qualify for Medicaid, that could be good. Medicaid will pay for all her medical costs as well as room and board at a nursing home. There really are no "cons" other than some nursing homes do not accept Medicaid, insisting on private pay patients only, so that could limit her choice of facilities. see more
Question
I am confused about Medicare, Medicaid and Private Insurance benefits. Where do I start?
Hi: I discuss this in my book: Medicare Coverage of Nursing Home Expenses Many clients are under the mistaken impression that Medicare... Hi: I discuss this in my book:
Medicare Coverage of Nursing Home Expenses
Many clients are under the mistaken impression that Medicare will cover their long-term nursing home stays. If you give seminars or in client meetings, it is important that you educate the lay public about this.
In order for Medicare to cover a person’s nursing home stay, the patient must:
1. Have been hospitalized for medically necessary inpatient hospital care for at least 3 consecutive days, not counting the date of discharge,
2. Be admitted to the nursing home within 30 days after the date of discharge from the hospital,
3. Require skilled (as opposed to custodial) nursing or rehab care on a daily basis for a condition for which the patient was hospitalized, and
4. Receive a physician’s order that such care is needed.
Skilled Care. Skilled care is care that can only be administered by professional (physician or nurse) or technical personnel and which will prevent further deterioration in the patient’s health. Examples are intravenous feeding, injections, insertion of catheters, application of sterile dressings, treatment of skin ulcers, and therapeutic exercises of various kinds. Less medically intensive and critical personal care services, even if done by a nurse, are not considered skilled care.
100-Day Limit. Once in the nursing home, the patient will only be covered by Medicare for a maximum of 100 days during any spell of illness. A “spell of illness” means a period of consecutive days beginning with the first day (not included in a previous spell of illness) on which such individual is furnished inpatient hospital services, inpatient critical access hospital services or extended care services, and which occurs in a month for which he is entitled to Medicare Part A benefits, and ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a nursing facility.
Co-Pay Rule. Finally, even if the patient manages to qualify for Medicare coverage of their nursing home stay, Medicare only fully pays the bill for days 1-20. For days 21-100, Medicare only pays the “SNF care coinsurance” amount, which in 2010 is $137.50 (set annually by the federal government).
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Hope that helps!
K. Gabriel Heiser see more
Medicare Coverage of Nursing Home Expenses
Many clients are under the mistaken impression that Medicare will cover their long-term nursing home stays. If you give seminars or in client meetings, it is important that you educate the lay public about this.
In order for Medicare to cover a person’s nursing home stay, the patient must:
1. Have been hospitalized for medically necessary inpatient hospital care for at least 3 consecutive days, not counting the date of discharge,
2. Be admitted to the nursing home within 30 days after the date of discharge from the hospital,
3. Require skilled (as opposed to custodial) nursing or rehab care on a daily basis for a condition for which the patient was hospitalized, and
4. Receive a physician’s order that such care is needed.
Skilled Care. Skilled care is care that can only be administered by professional (physician or nurse) or technical personnel and which will prevent further deterioration in the patient’s health. Examples are intravenous feeding, injections, insertion of catheters, application of sterile dressings, treatment of skin ulcers, and therapeutic exercises of various kinds. Less medically intensive and critical personal care services, even if done by a nurse, are not considered skilled care.
100-Day Limit. Once in the nursing home, the patient will only be covered by Medicare for a maximum of 100 days during any spell of illness. A “spell of illness” means a period of consecutive days beginning with the first day (not included in a previous spell of illness) on which such individual is furnished inpatient hospital services, inpatient critical access hospital services or extended care services, and which occurs in a month for which he is entitled to Medicare Part A benefits, and ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a nursing facility.
Co-Pay Rule. Finally, even if the patient manages to qualify for Medicare coverage of their nursing home stay, Medicare only fully pays the bill for days 1-20. For days 21-100, Medicare only pays the “SNF care coinsurance” amount, which in 2010 is $137.50 (set annually by the federal government).
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Hope that helps!
K. Gabriel Heiser see more
Question
My elderly mom has power of attorney for my elderly aunt who lives in assisted living, but we need help figuri...
As an elder law attorney myself, I would want to be sure all of the financial aspects of paying for your aunt's care have been thought... As an elder law attorney myself, I would want to be sure all of the financial aspects of paying for your aunt's care have been thought through. Selling her house may be a big mistake--or not, depending on your state's laws, her other money, state of her health, her age, etc. It's rarely a simple answer and definitely not a one-size-fits-all solution. While visiting with the attorney about the foregoing, your questions about the power of attorney (including, as Crowmagnum mentioned, a discussion of a healthcare power of attorney). see more
Question
I take care of my elderly father. If he depletes his assets by paying me for his care, will he still have to w...
In most states, a parent can pay the child for needed care, if there is a written contract and the amount being paid is in line with what a... In most states, a parent can pay the child for needed care, if there is a written contract and the amount being paid is in line with what a private non-family member caregiver would charge.
There is no "30-month" waiting period for Medicaid. I think you are confusing this with the penalty for making a gift, which USED to be 30 months. Now, there is no limit on the length of time of a penalty, if the parent applies for Medicaid within 60 months of making a gift. The length of time of the penalty is determined by dividing the value of the gift by the average cost of a nursing home in the state where the parent resides (this number is set by the state).
Thus, if there is a need for the child to care for the parent, indeed it could be a good way to decrease the parent's countable assets down to the level that Medicaid requires.
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If I may, I would suggest you take a look at my book, which is filled with information about this topic! It is available here: MedicaidSecrets.com. Best of luck with everything! see more
There is no "30-month" waiting period for Medicaid. I think you are confusing this with the penalty for making a gift, which USED to be 30 months. Now, there is no limit on the length of time of a penalty, if the parent applies for Medicaid within 60 months of making a gift. The length of time of the penalty is determined by dividing the value of the gift by the average cost of a nursing home in the state where the parent resides (this number is set by the state).
Thus, if there is a need for the child to care for the parent, indeed it could be a good way to decrease the parent's countable assets down to the level that Medicaid requires.
x
If I may, I would suggest you take a look at my book, which is filled with information about this topic! It is available here: MedicaidSecrets.com. Best of luck with everything! see more
Question
I take care of my elderly father. If he depletes his assets by paying me for his care, will he still have to w...
Here's a book that may be helpful: "How to Care For Your Parents' Money While Caring for Your Parents" The description... Here's a book that may be helpful: "How to Care For Your Parents' Money While Caring for Your Parents" The description says: Filled with checklists, worksheets, resource lists, and other essential tools, this comprehensive guide supplies the knowledge and confidence you need to: decide who should manage your parents' money; communicate with siblings and caregivers; establish budgets and write annual reports; manage your parents' stocks, bonds, real estate, and other investments; deal with health insurance, Medicaid, and other insurance issues; and protect your parents from elder fraud.
No, I didn't write this one, but it looks pretty good!
As far as the attorney who couldn't take a case where his own documents were at issue, standard attorney ethics rules guidelines would dictate that result. Otherwise, he'd be defending his own documents and could not be his own witness. Accordingly, he is required to turn down the case and refer it out. There is nothing in the least bit shady about this. see more
No, I didn't write this one, but it looks pretty good!
As far as the attorney who couldn't take a case where his own documents were at issue, standard attorney ethics rules guidelines would dictate that result. Otherwise, he'd be defending his own documents and could not be his own witness. Accordingly, he is required to turn down the case and refer it out. There is nothing in the least bit shady about this. see more
Question
Legal documents, what's the point of having lawyers draw them up when other lawyers can contest them at whim?
Certainly an attorney must be held accountable for both the quality as well as appropriateness of his or her legal documents for a... Certainly an attorney must be held accountable for both the quality as well as appropriateness of his or her legal documents for a particular client. In the vast majority of cases, no problems will ever come up. In the unlikely event of a challenge to either the quality or appropriateness of the documents (or, in your situation, if the client was competent to sign the documents), the attorney who prepared the documents may well have to defend his or her actions in court. If that lawyer is actually being sued, then that attorney would have to defend him- or herself, or hire his or her own attorney to represent him or her in court, and the person suing the attorney won't be paying that attorney any fees for that attorney showing up in court.
If, however, the question of competency is merely a secondary issue in some other lawsuit, and the attorney is being brought in as a witness, then the party who requests the attorney as witness would pay that attorney his or her fees for the time involved.
As for getting attorneys to guarantee they will defend their own documents at no charge, I've never heard of such an arrangement. That being said, most attorneys do have malpractice insurance that will pay to defend the insured attorney if he or she is sued for possibly making an error in a document. In my 25 years of practicing law, I was never once sued, and I prepared hundreds of wills, trusts, deeds, etc., for many clients over that time period. see more
If, however, the question of competency is merely a secondary issue in some other lawsuit, and the attorney is being brought in as a witness, then the party who requests the attorney as witness would pay that attorney his or her fees for the time involved.
As for getting attorneys to guarantee they will defend their own documents at no charge, I've never heard of such an arrangement. That being said, most attorneys do have malpractice insurance that will pay to defend the insured attorney if he or she is sued for possibly making an error in a document. In my 25 years of practicing law, I was never once sued, and I prepared hundreds of wills, trusts, deeds, etc., for many clients over that time period. see more
Question
My mother needs care and needs to live in a nursing home, but my siblings are creating problems with this. How...
I agree with Daniel Romero that if your mother is competent, she can still legally sign a durable power of attorney appointing you as her... I agree with Daniel Romero that if your mother is competent, she can still legally sign a durable power of attorney appointing you as her "agent". A software form is better than nothing, but an elder law attorney's form will most typically include additional helpful clauses. For example, in my form I always included the ability to make gifts and do other actions to help qualify the elder person for Medicaid. Without such clauses, you would need to petition the court for similar permission, and that is often denied. Good luck! see more
Question
My 86-year-old widowed mother has no trust or will. How necessary is it at this point?
A trust or will is not necessary if all property and assets are held in accounts or other form that has a beneficiary designation. If she... A trust or will is not necessary if all property and assets are held in accounts or other form that has a beneficiary designation. If she owns real estate, some states even permit the use of a beneficiary deed, but this is a minority of states. Her personal property is technically a probate asset and would pass by will or your mother's state's intestacy laws, but if the personal property is modest in value and you don't expect any problems dividing it up, then that should not cause any issues.
Often a simple will is helpful in even such cases as yours if your mother wants to put one child in charge of dividing things up, or if she wants to leave certain items to one child and other items to another, or if she wants to divide monetary assets (stocks, mutual funds, bank accounts, etc.) unequally. However, if every single asset is covered by a beneficiary designation and she is happy with that, then a will may not be required. see more
Often a simple will is helpful in even such cases as yours if your mother wants to put one child in charge of dividing things up, or if she wants to leave certain items to one child and other items to another, or if she wants to divide monetary assets (stocks, mutual funds, bank accounts, etc.) unequally. However, if every single asset is covered by a beneficiary designation and she is happy with that, then a will may not be required. see more
I am confused about Medicare, Medicaid and Private Insurance benefits. Where do I start?