Unfortunately, many elderly people who require the need to be placed in a nursing home end up exhausting their assets to pay for their stay at the nursing home. These elderly people failed at protecting their assets only because they failed to properly plan. The best time to plan for the possibility of nursing home care is when you’re still healthy. With proper Medicaid planning, you may be able to protect your assets so that your loved ones may enjoy your hard earned assets.

You worked hard all of your life to pay off your mortgage and build a retirement fund. You expected to live off your savings in the comfort of your own home, and you planned to leave something to your kids at the appropriate time. Suddenly, the unthinkable happens — you suffer a stroke at age 70 and must spend the rest of your years in a nursing home. What will happen to your life savings?

Eligibility for Medicaid Depends on Your State’s Asset and Income Requirements

Medicaid is a joint federal and state program that provides medical assistance to various low-income individuals, including those who are elderly (i.e. aged 65 or older), disabled or blind. It is the single largest payer of nursing home bills in America, and it is the last resort for people who have no other way to finance their long-term care. Although Medicaid eligibility rules vary from state to state, federal minimum standards and guidelines must be observed.

In addition to meeting your state’s medical and functional criteria for nursing home care, your assets and monthly income must each fall below certain levels if you are to qualify for Medicaid. However, several assets (which may include your family home) and a certain amount of income may be exempt or not counted.

Medicaid Planning Can Help You Meet Your State’s Requirements

To determine whether you qualify for Medicaid, your state may count only the income and assets that are legally available to you for paying bills. Medicaid planning helps you devise ways of making your assets and income inaccessible. Over the years, attorneys have developed several strategies to rearrange finances and legally shelter assets from the state. These strategies — and the Medicaid rules themselves — can be complicated, especially with the enactment of the Deficit Reduction Act of 2005, which tightened Medicaid rules. You should consult an experienced elder law attorney if you wish to take steps to protect your assets from the state.

Along with qualifying you for Medicaid benefits, Medicaid planning seeks to accomplish the following goals: sheltering your countable assets, preserving assets for your loved ones and providing for your healthy spouse (if you’re married).

One Way to Shelter Countable Assets is to Exchange Them for Exempt Assets

Countable assets are those that are not exempt by state law or otherwise made inaccessible to the state for Medicaid purposes. The total value of your countable assets (together with your countable income) will determine your eligibility for Medicaid. Under federal guidelines, each state compiles a list of exempt assets. Usually, this list includes such items as the family home (regardless of value), prepaid burial plots and contracts, one automobile and term life insurance.

Through Medicaid planning, you can rearrange your finances so that countable assets are exchanged for exempt assets or otherwise made inaccessible to the state. For example, instead of spending your savings solely on nursing home bills, you can pay off the mortgage on your family home, make home improvements and repairs, pay off your debts, purchase a car for your healthy spouse and prepay burial expenses. There are many other ways to shelter countable assets.

Irrevocable Trusts Can Help You Leave Something for Your Loved Ones

Why not simply liquidate all of your assets to pay for your nursing home care? After all, Medicaid will eventually kick in (in most states) once you’ve exhausted your personal resources. The reason is simple — you want to assist your loved ones financially. You want to be able to leave something to them, rather than to strangers.

There are many ways to protect assets for your loved ones. One way is to use an irrevocable trust (it’s irrevocable in the sense that you can’t later change its terms or decide to end it).  Property placed in an irrevocable trust will be excluded from your financial picture, for Medicaid purposes. If you name a proper beneficiary, the principal that you deposit into the trust (and possibly any income generated) will be sheltered from the state and can be preserved for your heirs. Typically, though, the trust must be in place and funded for a specific period of time for this strategy to be an effective Medicaid planning tool.

An Annuity Can Help You Provide for Your Healthy Spouse

Nursing homes are expensive. If you must go to one, will your spouse have enough money to live on? With a little planning, the answer is yes. Here’s how Medicaid affects a married couple. A couple’s assets are pooled together when the state is considering the eligibility of one spouse for Medicaid. The healthy spouse is entitled to keep a spousal resource allowance that generally amounts to one-half of the assets. This may not amount to much money over the long term.

A healthy spouse may want to use jointly owned, countable assets to buy a single premium immediate annuity to benefit himself or herself. Converting countable assets into an income stream is a plus because each spouse is entitled to keep all of his or her own income, in contrast to the pooling of assets. By purchasing an immediate annuity in this manner, the institutionalized spouse can more easily qualify for Medicaid, and the healthy spouse can enjoy a higher standard of living.

Be aware, however, that for annuities purchased on or after February 8, 2006, the state must be named as the remainder beneficiary of the annuity after your spouse or a minor or disabled child.

Beware of Certain Medicaid Planning Risks

Medicaid planning is not without certain risks and drawbacks. In particular, you should be aware of look-back periods, possible disqualification for Medicaid, and estate recoveries.

When you apply for Medicaid, the state has the right to review, or look back, at your finances (and those of your spouse) for a period of months before the date you applied for assistance. In general, a 60-month look-back period exists for transfers of countable assets for less than fair market value (for transfers made prior to February 8, 2006, there is a look-back period of 60 months for transfers into an irrevocable trust and a look-back period of 36 months for all other transfers). Transfers of countable assets for less than fair market value made during the look-back period will usually result in a waiting period before you can start to collect Medicaid. So, for example, if you give your house to your kids the year before you enter a nursing home, you’ll be ineligible for Medicaid for quite some time. A mathematical formula is used.

Example:  Dad gives Son a gift of $100,000.  Medicaid will consider the $100,000 figure and divide it by the average monthly cost of nursing care, let’s say $10,000 which equals 10.  Therefore, Dad will be ineligible for Medicaid for 10 months.

Additionally, you may be able to have a Medicaid trust without the imposition of a penalty period if the transfer is made to: (i) a qualifying relative; (ii) your child who is either under 21 years of age, blind or permanently disabled; (iii) your sibling, if he or she has an equity interest in the house and was living there for at least one year before you went into a nursing home; or (iv) your adult child, if that child has lived in the home at least two years before you went into a nursing home and that child was taking care of you.

Speaking with an experienced trusts and estates attorney will be useful to you because the attorney will advise you on the options available to you which will allow you to use Medicaid to cover the cost of medical care without depleting your assets.  In addition, planning in advance is a good option because the penalty period will likely expire before you may need to be admitted to a nursing home.

Medicaid Planning allows you to protect your family’s assets from being used to pay for your medical and nursing home care by justifying the need to receive Medicaid in the future to cover those expenses. The attorneys at Yedid & Zeitoune, PLLC have a combined 15 years of legal experience at top New York City law firms and are ready to assist you in all your legal needs. Let us help you prepare for you and your family’s future. May we all only know of happiness – amen!

The attorneys in the Trust & Estates Practice Group at Yedid & Zeitoune have a combined 15 years of legal experience and are ready to assist you with all your estate planning needs.

Isaac Yedid, Esq. and Raymond Zeitoune, Esq.

Yedid & Zeitoune, PLLC 

1172 Coney Island Avenue Brooklyn, New York 11230

Phone: (347) 461-9800    Fax: (718) 421-1695   Email: [email protected]

NYC Office – By Appointment Only: