Why is it important to use an Attorney when applying for Medicaid Benefits?

Applying for Medicaid benefits for long-term care can be a daunting process. While it is true that certain cases can be handled without the assistance of an attorney, it is important for an applicant or his or her family to obtain competent legal advice if many types of situations.

We have had several clients come to our office who had either been unaware of the existence of certain Medicaid laws that can be used to their advantage or who did not want to pay for fees associated with using an attorney.  Unfortunately, these clients have had Medicaid applications that had either been denied or were not properly informed of the Medicaid laws that could have been used to adequately protect themselves or their loved ones.

Recent examples of clients coming to our office after receiving no advice or improper advice include:

  • A husband of a nursing home resident came to our office for a consultation regarding his wife.  The husband was concerned with protecting the marital assets, including the marital home, for the benefit of his disabled child who was unable to work.  The husband and wife had total assets of approximately $50,000.00 at the time the wife entered the nursing home.  Prior to coming to our office, a non-attorney advisor advised the individual about spending down funds and paying the nursing home in order to qualify for Medicaid coverage for his wife.    Additionally, the nursing home resident, who suffered from advanced Alzheimer’s, did not have a financial or healthcare power of attorney.  Therefore, a guardianship was needed in order for the husband to transfer the home to him individually.  The non-attorney did not advise the husband that a guardianship would be needed in order to protect the home for the benefit of his disabled daughter.  He also did not advise that the excess Medicaid assets could have been transferred to the child with a disability exempt from the Medicaid five-year look-back rule.  The husband spent an additional $25,000.00 in assets that would not otherwise have been necessary to pay for his wife’s nursing home care.
  • A wife of a nursing home resident came to our office after receiving a Medicaid denial due to gifting issues.  At the time of the meeting, all assets had been spent down to the required Medicaid limits.  At the time the husband entered the nursing home, Husband and wife had combined assets of over $250,000.  Pursuant to Medicaid eligibility rules and regulation, only approximately $130,000 of combined spousal funds would have been required to have been spent down in order to obtain Medicaid eligibility.  Utilizing legal spend down methods pursuant to both federal and state law, virtually all of the excess assets could have been protected.  The wife was unaware of how the Medicaid rules could have been sued to her advantage.

Typically, in a case involving a husband and wife attempting to qualify the nursing home spouse for Medicaid, a proper legal analysis would include the following:

1) Existence of proper estate planning documents including wills, powers of attorney and advanced directives, and drafting revised or new documents if applicable.

2) If client not competent, discussion of potential need for guardianship.

3) Discussion of methods of available resources to pay the nursing home, including the regulations involving the statutory scheme and standard for Medicare coverage.

4) Nursing home law and regulations involving transfers from a nursing home to another nursing home.

5) Planning with the marital home, including transferring home to healthy spouse.

6) Determining countable and non-countable Medicaid assets.

7) Review of uncompensated transfers or gifts that have occurred during the Medicaid five year look back, and determining whether a statutory exception applies to any uncompensated transfers.

8) Determination of a child with a disability, and if so, potential special needs planning for the disabled child.

9)  Determination of income and resources statutorily protected for benefit of community spouse, including methods available to increase both income allowance and asset allowance to community spouse at Medicaid Fair Hearing.

In many cases, it is beneficial to obtain the advice of an experienced elder law attorney who can implement the right plan, explain all the rules, and weigh the costs and benefits of the best Medicaid plan under the circumstances, including gift, estate, and capital gains tax implications.  Each case must be assessed and tailored to the individual’s specific needs.

Please feel free to contact our office if you or a loved one need help with determining how to get the best care, figuring out how to pay for the necessary care, as well as assistance in navigating all community resources.

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