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
If a grantor signs a quit claim deed making the property into a living trust, can the grantor change to whom s...
To clarify the language, the property was not transferred into a living trust, as you initially indicated in your question. Instead, they... To clarify the language, the property was not transferred into a living trust, as you initially indicated in your question. Instead, they transferred a "remainder interest" in the house to their children, retaining a "life estate." Such a transfer is not revocable unless the children deed their interest back to their parents. So, at the present time, your husband's grandma can only give away (by deed) what she currently owns, i.e., an interest in the house for the rest of her life. Any deed she signs cannot change the interest of her two children. Upon grandma's death, regardless of what deed she now signs, the entire interest in the property will be vested in the names of her two children. In other words, they will own it outright. see more
Question
When my mother's income is utilized by Medicaid, how do her bills get paid?
If the bills not getting paid are related to her house, then simply not paying them will result in them being terminated, e.g., no gas, no... If the bills not getting paid are related to her house, then simply not paying them will result in them being terminated, e.g., no gas, no electricity, no heat. Depending on the climate of where you live, if the house is not heated, the pipes may burst, etc. So the children may decide to pay for a minimal amount of heat to avoid the house getting damaged by that scenario. The same applies to any mortgage there may be on the house: if it's not paid, the house can be foreclosed upon and sold by the bank to pay off the debt. If the children wish to avoid that (thinking that they want to inherit the house--or at least the proceeds of sale--upon their mom's death), then they have to chip in and pay the mortgage themselves. If they do that, though, they should be sure to record the debt on an ongoing basis so as to become "secured creditors" just like a bank, so that upon mom's death they can be repaid out of the proceeds of the house sale ahead of any claim by the state for Medicaid recoupment. see more
Question
Can someone explain what the 5-year "look back" period for Medicaid is?
Yes, she can purchase furniture without it causing any type of penalty. All such personal property is considered exempt when and if she... Yes, she can purchase furniture without it causing any type of penalty. All such personal property is considered exempt when and if she applies for Medicaid at some point. see more
Question
Can someone explain what the 5-year "look back" period for Medicaid is?
The way the five-year lookback period works is as follows: When a person applies for Medicaid for nursing home care, all gifts made by that... The way the five-year lookback period works is as follows: When a person applies for Medicaid for nursing home care, all gifts made by that person within the previous five years are added together. The total number is then divided by the average cost of a nursing home in the state (or locality, in some states) where the person is living, to come up with a number that equals the "penalty period," i.e., a number of months that Medicaid will not pay for that person's care.
That divisor number (average cost in a state) is set by each state in January. To find out what it is in your state, call your state Medicaid eligibility department. see more
That divisor number (average cost in a state) is set by each state in January. To find out what it is in your state, call your state Medicaid eligibility department. see more
Question
If in future I wish to change POA or cancel what should I do?
As a practical matter, be sure to retrieve any outstanding copies of the now-revoked power of attorney, to prevent its use after you revoke... As a practical matter, be sure to retrieve any outstanding copies of the now-revoked power of attorney, to prevent its use after you revoke it! see more
Question
Can you override a power of attorney by filling out a new one?
Yes, we lawyers look for a "lucid moment" and quickly explain the document and satisfy ourselves the client has sufficient mental... Yes, we lawyers look for a "lucid moment" and quickly explain the document and satisfy ourselves the client has sufficient mental capacity at that time to understand the document. That's when we can have it signed. Even if the client does not remember anything about it 20 minutes later, that will not invalidate the document. Note, however, that if there is family discord, it's possible that someone who does not want the person named as agent in the document to so serve may well challenge it. However, in the normal family situation, this would not occur and the power of attorney will be of great help to the family. see more
Question
Can you override a power of attorney by filling out a new one?
It is important to differentiate between a medical diagnosis of dementia and a legal judgment of legal capacity to contract, i.e., sign a... It is important to differentiate between a medical diagnosis of dementia and a legal judgment of legal capacity to contract, i.e., sign a durable power of attorney. It is possible that a person diagnosed as having dementia may nonetheless have the legal capacity to sign (or indicate someone to sign on their behalf) a durable power of attorney. The critical test is if the individual understands what he or she is signing, as well as the impact of the document. see more
Question
How do you change a document where money is involved to a nursing home account?
At the point when a parent is unable to understand what they need to sign, unless a durable power of attorney is already in place, someone... At the point when a parent is unable to understand what they need to sign, unless a durable power of attorney is already in place, someone must seek guardianship on behalf of the parent. Typically a child or other relative would be the one to seek appointment by the court. Once the guardianship is in place, the guardian can go to the bank to move, open, and close accounts as needed. see more
Question
Can you override a power of attorney by filling out a new one?
I've prepared hundreds of Durable Powers of Attorney over the years. They always include a section revoking any prior power of attorney... I've prepared hundreds of Durable Powers of Attorney over the years. They always include a section revoking any prior power of attorney signed by the signer, e.g., "I revoke all prior General Powers of Attorney that I may have executed." As mentioned above, the signer must be legally competent to sign the document for it to be effective. see more
Question
Any suggestions on buying a house together with elderly parents?
I agree that it's good to go through a long list of "we all get along now, but what if..."! Most of what are in wills, trusts... I agree that it's good to go through a long list of "we all get along now, but what if..."! Most of what are in wills, trusts and contracts are clauses that lawyers have put in there to deal with some misfortune that happened along the way to someone and they want to make sure that doesn't happen again to their clients. That's why these legal documents are so darn long! see more
Question
Any suggestions on buying a house together with elderly parents?
On the contrary, purchasing a home with parent(s) can be a very good Medicaid asset protection technique. I had one woman purchase a home... On the contrary, purchasing a home with parent(s) can be a very good Medicaid asset protection technique. I had one woman purchase a home with her daughter. As long as they each contribute half of the purchase price, there will be no gifting and the Mom's interest in the house will be exempt when she applies for Medicaid eventually.
I also made sure the deed was in joint names with right of survivorship (JTWROS). This was important, so that upon Mom's death, the house passed automatically 100% to the daughter's name, avoiding both probate and the state's claim for Medicaid paid out for the mother's care.
If it gets to the point where your Mom needs care in order to avoid going to the nursing home, there is a federal law that says that if you take care of your parent for at least two years immediately before they go into a nursing home, and your care enabled your parent to delay needing nursing home care, they can transfer their house to you (or their interest in the jointly owned house, as the case may be) without any gift penalty.
Finally, consider a personal services contract, where you care for the parent in exchange for payment. Again, this avoids gift treatment of the money coming to you, though of course it is taxable income to you. see more
I also made sure the deed was in joint names with right of survivorship (JTWROS). This was important, so that upon Mom's death, the house passed automatically 100% to the daughter's name, avoiding both probate and the state's claim for Medicaid paid out for the mother's care.
If it gets to the point where your Mom needs care in order to avoid going to the nursing home, there is a federal law that says that if you take care of your parent for at least two years immediately before they go into a nursing home, and your care enabled your parent to delay needing nursing home care, they can transfer their house to you (or their interest in the jointly owned house, as the case may be) without any gift penalty.
Finally, consider a personal services contract, where you care for the parent in exchange for payment. Again, this avoids gift treatment of the money coming to you, though of course it is taxable income to you. see more
Question
I'm DPOA for my parents effective immediately. How do I set up bank accounts?
If you used your POA to transfer money from their separately titled account into a joint bank account that requires only one party's... If you used your POA to transfer money from their separately titled account into a joint bank account that requires only one party's signature (i.e., an "or" title vs "and" title: Mary Smith OR Jane Smith, vs Mary Smith AND Jane Smith) to access the funds, then your parents will not be deemed to have made a disqualifying transfer for Medicaid purposes. Otherwise, the transfer will be deemed a gift to you by them, resulting in a Medicaid penalty, that is, a period of disqualification from Medicaid benefits should they apply within the next 5 years.
However, to avoid any issues, it would be safer to have all the accounts solely in the names of your parents, with you relying on the POA to access the accounts, sign checks, etc., on their behalf.
If you transferred funds from their name into your name without their consent, that clearly is illegal and the funds should be returned immediately. As I just stated, put them into an account in their sole names, but with you listed as the "agent" under their durable POA. see more
However, to avoid any issues, it would be safer to have all the accounts solely in the names of your parents, with you relying on the POA to access the accounts, sign checks, etc., on their behalf.
If you transferred funds from their name into your name without their consent, that clearly is illegal and the funds should be returned immediately. As I just stated, put them into an account in their sole names, but with you listed as the "agent" under their durable POA. see more
Question
When is the best time to apply for Medicaid?
Here is a list of the Pooled Trusts available for Ohio Medicaid: www.charitiespooledtrust.org www.cfmf.org/trusts.html... Here is a list of the Pooled Trusts available for Ohio Medicaid:
www.charitiespooledtrust.org
www.cfmf.org/trusts.html
www.commonwealthcommunitytrust.org
www.disability-foundation.org
www.sntcenter.org/Download_Page_Ohio.htm
www.mcgivneytrust.com
www.securedfutures-snt.org
www.securettrust.org
I hope that helps! For the other states, check here:
http://www.specialneedsanswers.com/resources/directory_of_pooled_trusts.asp see more
www.charitiespooledtrust.org
www.cfmf.org/trusts.html
www.commonwealthcommunitytrust.org
www.disability-foundation.org
www.sntcenter.org/Download_Page_Ohio.htm
www.mcgivneytrust.com
www.securedfutures-snt.org
www.securettrust.org
I hope that helps! For the other states, check here:
http://www.specialneedsanswers.com/resources/directory_of_pooled_trusts.asp see more
Question
Can someone explain what the 5-year "look back" period for Medicaid is?
In most states, giving away an exempt asset (other than the home) does not cause a penalty when the person who made the gift applies for... In most states, giving away an exempt asset (other than the home) does not cause a penalty when the person who made the gift applies for Medicaid within 5 years of the gift. On the other hand, if the t.v. is sold, that resultant cash certainly is a countable asset, even though the t.v. itself was an exempt asset. see more
Question
When is the best time to apply for Medicaid?
Ralph Robbins made good points. The "Supplemental Needs Trust" he refers to is known as a Pooled Trust, managed by a non-profit... Ralph Robbins made good points. The "Supplemental Needs Trust" he refers to is known as a Pooled Trust, managed by a non-profit organization in your state. Unfortunately, many states penalize transfers into such a trust by people over age 65, so be sure to check your state law before thinking too much about this option. see more
Question
When is the best time to apply for Medicaid?
1. By law the state only has 45 days to decide, though in practice they often miss this deadline. 2. If any gifts have been made within... 1. By law the state only has 45 days to decide, though in practice they often miss this deadline.
2. If any gifts have been made within the last 5 years, the penalty period will not even start to run until you apply for Medicaid. That starts the clock running.
3. If you apply and Mom still has a little bit too much cash, you can certainly come back again when that money is gone.
4. Assuming Mom is in a facility that accepts Medicaid, the facility cannot evict Mom for non-payment of the nursing home bills during the period the state is making up its mind whether Mom qualifies or not.
5. Be aware that some states have a rule that a Medicaid applicant is not eligible for coverage in any month that the nursing home has been paid in full. Perhaps the state’s rationale is that there was no need for Medicaid, since the bill was fully paid, so they will not extend eligibility for any such month. Ac-cordingly, in such states, it is important that the nursing home be paid some-what less than the amount it bills the client, to avoid this problem. see more
2. If any gifts have been made within the last 5 years, the penalty period will not even start to run until you apply for Medicaid. That starts the clock running.
3. If you apply and Mom still has a little bit too much cash, you can certainly come back again when that money is gone.
4. Assuming Mom is in a facility that accepts Medicaid, the facility cannot evict Mom for non-payment of the nursing home bills during the period the state is making up its mind whether Mom qualifies or not.
5. Be aware that some states have a rule that a Medicaid applicant is not eligible for coverage in any month that the nursing home has been paid in full. Perhaps the state’s rationale is that there was no need for Medicaid, since the bill was fully paid, so they will not extend eligibility for any such month. Ac-cordingly, in such states, it is important that the nursing home be paid some-what less than the amount it bills the client, to avoid this problem. see more
Question
Can someone explain what the 5-year "look back" period for Medicaid is?
No, the cash value you received and then gifted would not have to be paid to the government, but it would result in a "penalty... No, the cash value you received and then gifted would not have to be paid to the government, but it would result in a "penalty period," i.e., a certain number of months that Medicaid would not cover your nursing home bills. After that time period, assuming you otherwise qualify, Medicaid would start to pay your nursing home bills. The length of the penalty period depends on the total amount of gifts you made within the past 5 years (the "lookback period") and the state you are in, because each state calculates the penalty period slightly differently. see more
Question
I need to find a nursing home for my father, where do I start?
ProPublica, an independent, non-profit news organization that produces investigative journalism in the public interest, has just launched a... ProPublica, an independent, non-profit news organization that produces investigative journalism in the public interest, has just launched a new website that allows you to search by state to find out which nursing homes have the highest number of deficiencies. You can search through thousands of nursing homes and find out the results of recent government inspections, nationwide. There is a list of the worst states, but most importantly if you are a family member wanting to find a good nursing home for your elder relative, you can search by state and see the reports for the nursing homes just in your state. You can also search by keyword, city or name of nursing home.
To reach the reporting tool itself, click here: http://projects.propublica.org/nursing-homes/
For tips on how best to use the above reporting tool, click this link: http://www.propublica.org/article/how-to-search-nursing-home-inspect see more
To reach the reporting tool itself, click here: http://projects.propublica.org/nursing-homes/
For tips on how best to use the above reporting tool, click this link: http://www.propublica.org/article/how-to-search-nursing-home-inspect see more
Question
Can Medicaid say my mom is not sick enough yet to pay for her nursing home bills?
A person can qualify for Medicaid and not be “disabled” or blind, if they are at least age 65 AND need daily nursing services of the type... A person can qualify for Medicaid and not be “disabled” or blind, if they are at least age 65 AND need daily nursing services of the type provided in a nursing home. To determine that need, the state will typically send a nurse or trained intake worker to the Medicaid applicant’s home, to interview the applicant. The nurse or worker will have a checklist of Activities of Daily Living (ADLs: feeding, dressing, toileting, bathing, transferring (from bed and chair), and (sometimes) continence) and in order to be deemed “sick” enough to qualify for Medicaid, the applicant must “fail” a certain number of these tests.
It sounds like your mother has not "failed" enough of these tests, but you may be able to advocate on her behalf, as some of the other posters have suggested, and get her qualified before she completely runs out of funds! see more
It sounds like your mother has not "failed" enough of these tests, but you may be able to advocate on her behalf, as some of the other posters have suggested, and get her qualified before she completely runs out of funds! see more
How do I stop a bank from acknowledging a Revocation of DPOA issued after the principle was deemed incompetent...