OK, this is a really long one, and it's more for info than anything else. I hope it helps someone at least get started. Last January, my DD found a Registered Investment Advisor. He specialized in Elder financial matters. He is not an attorney, but they had one in the office, so all his advice was checked out by an attorney. We went to him to see what the heck we were going to do about the impending nursing home, and how I was going to be able to keep any money for myself, and how to keep our life savings from going down the drain, especially if I was going to still need to live on it!
So, here is what he emailed us. I do NOT know how much of this can apply to you, since we are in Texas, but it seems a lot of it is on a federal basis because it involves medicaid and all that. The people involved are York (me, 65 ready to live at least 15 more years) and Andrea (EOAD, nursing home bound). So just switch out my names for yours, adn see if it makes any sense. I hope that you can print this out and take it to someone and say, "Can I get this stuff, too?" because it really helped us. This guy was amazing. If you email Tina, she can forward you the email, too. Good luck! yhc
Tina,
I enjoyed meeting you and your dad yesterday. Enclosed is the plan we discussed to protect your mom and dad’s assets from nursing home spend-down and qualify mom for Medicaid to pay for her care. I added one additional point (a new #1) after our discussion yesterday. After you’ve found a nursing home for mom, call me and we can pursue the other action items.
1. Disability Confirmation – Usually the staff at a nursing home identifies that a person is disabled (meets medical necessity rules under Medicaid) in order to qualify for Medicaid long term care benefits. Because your mom is <65 we will accomplish this through Social Security instead of the nursing home staff. Contact Social Security in Austin at 512-206-3703 and schedule a meeting with your dad. Fill out forms requesting that Social Security declare mom as disabled. This process can take up to 90 days, so the sooner you start the sooner she will be approved. Her disability designation qualifies her for Medicaid long term care benefits.
2. Nursing Home – Find a nursing home that can provide care for Andrea, and that accepts Medicaid as a form of payment. Move Andrea to the nursing home.
3. Fund Burial Expenses – set aside appropriate funds in a burial trust to prepay for mom and dad’s funeral expenses. I will help you set up a burial trust to accomplish this. There is no cost to set up the trust, it’s mobile (can be used at any funeral home), and excess funds are paid to a named beneficiary.
4. Spousal Pension – Put countable assets > $101,640 (this was the limit the spouse in the community could protect in 2007) in a spousal pension, an immediate income annuity. I will help you pick and set up an annuity for this purpose. Funds in the annuity are not countable, and therefore Andrea should immediately be eligible for Medicaid long term care benefits. The funds will pay back to York over a 60 month period.
5. File for Medicaid – I will help you complete the three Medicaid forms to apply for benefits. We’ll include a cover letter and a list of supporting documents to support Andrea’s application.
6. Convert Separate and Community Property into York’s Separate Property – Working with an attorney (Andy Friedmann or your husband) we will complete legal documents to shift ownership of all property into York’s name. There are two reasons to do this. First, York’s Will will now control and convey all property if he should die before Andrea, i.e., his Will helps deliver assets out of the estate and protect it from Andrea’s nursing home expenses. Second, it enables us to transfer assets gradually out of the estate and start a 5 year look back on transfers, should York need long term care in the future.
Thank you for sharing this valuable information with us. I live in New Hampshire, but I am sure the medicaid laws are the same here. I am just starting the process, and luckily, or sadly.. lol - depending on how you want to look at it, our case is easier as Lynn has nothing except his SS check. She said he qualified on income alone. One thing nobody could ever say about our age difference, I certainly didn't marry for money LOL
Trisinger. (1) The disability for Social Security can take much longer than 90 days, sometimes up to and beyond 2 years. Second, this does not automatically qualify her for Medicaid long term care, there are certain Medical qualifications that every State requires. Every Social Security Disabled person does not qualify for long term nursing home care.
(2)You cannot move Andrea to a NH without certain forms are filled out by her Doctor stating the type of care she needs.
(3) As for the burial funds. You do not need anyone to help you set this up. Go to the Funeral home of your choice, they will set it up for you. The funds have to be irrevocable and no remaining funds can go to you or anyone else, they all have to be used for the funeral expense. Even when you set this up with the Funeral home of your choice the funds are mobile and can be used anywhere when the time comes.
Trying to continue my post to Trisinger. It has been a difficult day here so I got side tracked.
(4.) Spousal Pension- Partly correct. You are only allowed the $101,640 or whatever the amount might be at the time you apply for Medicaid (It is already more than that) But you are only allowed up to that amount depending on what your assets are at the time you apply or otherwise your snapshot date, that can depend on when you were in the hospital or Nursing home for 30 days with Medicare payment or just the Date you apply for benefits. The Post also is referring to that amount being the protected amount. You do not have to place the protected amount in an Annunity, it is protected for York, he can do whatever he pleases with that amount after his spouse is certified, it is the spend down amount that you can place in the Annunity.
Also be careful when you get the Annunity, do not do this until you are given your spenddown amount, it has to be set up according to certain life tables that Medicaid using and has to be set up in a definite way. Some people (Not York, since he is only 65) but some people are already advanced in age to where they do not qualify under the life tables. The annunity has to be irrevocable and has to be immediate and pay back to York the full amount during this time.
Again I say, do not mess with the Assets until time to apply, you will reduce your protected amount.
(6.) Sounds good to me. except just remember the gradual transfer part, if it is gradual each transfer will cause a 5 year look back from the date of that transfer.
ALWAYS REMEMBER, I AM NOT A PROFESSIONAL IN ANY WAY, JUST A SIMPLE PERSON LIKE YOURSELF OFFERING YOU SUGGESTIONS TO THINK ABOUT.
Jane, thanks for the info. I will print it out and take it so that our financial person can answer those points. This was done back in January, so I don't know how much still even applies to us. Also, some stuff may be only for Texas. But we are going to see the planner on Friday, so I will ask him to clear up what you brought up. Andrea is 62, and interestingly, no one ever asked for a doctor's order for a NH. I am positive no forms from a doctor were asked for. I remember thinking at the time, boy you could just stick anyone in here. I think they wanted the POA for medical, but I think that was only for authorizing the doctor's care.
I was kind of hoping this stuff was standard, not just rules that depend on the person you go to!!
Trisinger, be sure and let me know what they tell you about my input. Also on the Doctor form you say it was never asked for, she is not already in a NH is she? I can't imagine them not requiring a Doctor form declaring the type of care she needed, that blows my mind.
Trisinger and Jane. Thank you for this discussion and probably need to print it out as well. My DH receives a teachers retirement benefit that I'm told will cause him to NEVER qualify for medicaid. The amount of that benefit would probably pay a bit more than HALF of the NH fee. In addition, he receives SS that only would pay a weeks' groceries.
Transferring properties into my name is the item that is a concern. Maybe its my own denial at work but if my DH even THOUGHT that I was going to do this, life would be impossible here. Its bad enough to go through the bank statement routine each month.
That IS getting better though as I arranged to have only one statement come to the house as a 'test'. If/when that one becomes a larger than necessary issue, I'll have that redirected as well. He is particularly sensitive about HIS money and now doesn't even agree that he should pay for our groceries. With those things in mind, it seems difficult to consider HOW to go about something so much larger.
The formalities of having the property and other accounts changed into my name would require agreement on his part, would they not? Or would the DPOA be sufficient to proceed without his knowledge???
Maybe Jane or Sunshyne have more info but it was my understanding that unless they SPECIFICALLY checked on the DPOA to give the agents the ability to GIFT (ie transfer titles property like the discussion here for preparing for spenddowns and medicaide etc) it was not something that can be done?? i looked after reading that and my DH did NOT check the box on the DPOA to 'gift'..arrgh! now when mine was done i did check it on my DPOA for my son- so i was under the assumption i couldnt do it at this point since he didnt give that specific power? info anyone?? i may have to sell the home at some point usin the DPOA and buy something smaller, and put the additional funds into a healthcare trust or such for DH NH care, but i didnt know about transferring title..man that would be opening a can of worms with his adult kids..if i transferred title into my name it would nulify his will leaving them 50% of estate which a big part is the home..i hate all this stuff to deal with..divvi
Here is my two cents worth: If you are the agent for your spouse's Durable Power of Attorney you are generally not allowed to gift ANYTHING to yourself. If you have a general DPOA, you may sell their property (real or personal). There are some states that have forms where you can check boxes that give you the power to gift. Those are different from the standard DPOAs that most of us seem to have. My spouse's (and my) DPOA allow the agent to do everything - and includes the medical HIPAA release as well.
My problem is that I make too much money to qualify my spouse for Medicaid. Or Veteran's pension. Or much of anything else. However, I don't make enough to pay for a nursing home! It's horrible being in the middle and finding a financial alternative that we can live with financially, at the same time providing the best care for my DH!
I would never divorce my DH, but for those of you considering it, I hope you remember that you lose all legal rights to have anything to say about where or when he is placed, what is done to him and for him, or help him in any way other than to visit him, if his legal guardian will allow it. Jane, Sunshyne and Starling - am I right here?
Divvi, this is for you. Yes, the DPOA has to specify gifting authority, Most States require the the DPOA specifically state that. As far as transferring the home to the spouse, that is not usually done until the other spouse enters the NH, then transferring would be done in best interest of the NH spouse. Otherwise you have to be very careful when you start to transfer a home out of the persons name, unless they sign over their rights to you, and then they have to be able to understand what they are doing. their interest has to be dealt with and usually that means giving your DH a life estate, this creates another can of worms so to speak because the life estate holder really has more rights than the remainder owner. thus another problem to deal with unless you also are the remainder holder and also hold a life estate also.
The times I am speaking of transferring the home to the name of the community spouse deal with when placement has taken place and you are in the process of applying for Medicaid. Nothing else.
For those of you who are trying to find out how to approach this delicate subject, i'll share my story. This happened before diagnosis but I feel I could do it now and be still be sccessful. I don't believe you could be successful with any of this in the more advanced stages. I gradually opened the subject by "planting seeds" in our conversations over several months. The subject was more "what if" -what if something happend teto me, what if something happened to him... If you know someone you can use for example it might be easier (remember what happened to ??). The conversation then became "maybe we should consider some estate planning (there is not an estate-just legal terminology). Maybe we should look at our wills (it has been over 10 years, things change....whatever).
I then called an elder attorney made an appointment and asked for advice and to explain the laws to me alone. I indicated that we may have some "issues" in the future because of memory problems. She especially talked about transferring property to my name (or in my case to my trust name) . . so he would eventually be able to qualify for Medicaid. Then I asked if I could make an appointment to come back with my DH. She explained that she could only advise us and do what we agreed to because of conflict of interest issues but she agreed to the appointment when I assured her that once he heard it from her (about losing assets to the government) and what it means to NOT do asset planning to protect property for family etc. we would definitely be in agreement.
Once at the appointment, I asked her specific questions (kind of leading the conversation) about what would happen IF I were in a near-fatal accident or had a stroke etc. and then translated that to we really need to make sure that "you and I" neither one have to struggle with legal issues if something happens to us, and how difficult that would be for our son. This type of conversation took the defensiveness out of the issues, there was no hint of trying to take things away etc. and he agreed to have the attorney prepare the necessary paperwork so we could accomplish the plans.
Bottom line, where I anticipated a huge argument and very defensive behaviour went very well and we are not all set when the time comes. The hope is that we will get 5 years (the lookback period) down the road before he will need NH.
Divvi, I hope some of this might help! It is a terrible struggle to get all this stuff done. Now I am trying to get him to quit work-remember I hid the contract in that came in the mail last week and I am working on the "planting seeds" again and trying to line up a social worker to help (as the authority figure). We will see where that one goes. Good luck!
i hate all this legal jargons stuff. i hope i never have to even try for medicaide=divvi
Me too Divvi, but I am so glad we have Jane to turn to. I am really sorry she has to be here but she may have just saved my DH and myself a few thousand dollars right now. We may have to pay it down the road but at least we don't have to now. I was thinking we had to do the paperwork NOW for Medicaid and thanks to Jane (also known as Wonder Woman to me) we don't have to until and IF we are ready to apply. Lord I love this group!
It boggles the mind. I always assumed medicaid was a gov program so was having trouble with why the rules are different from state to state. As I mentioned, due to my TIA strokes, I feel I am being pushed to sign Lynn up for medicaid before I am ready to use any of the services they offer. With his medication to control his rages, his care is managable now. WHEW
At any rate, I went in last week and had filled out the form they mailed me, with both of our income (SS and SSD) They said, no it is based ONLY ON HIS. The house has always been in my name only, so they didn't even count it in his assets. I am unsure if I want to proceed with this now, or withdraw my application until and if I need the services.
Miss B, you were wise to do this while DH was capable of signing. No one knows who wil go first us or them so that is where the battle lies in transferring property even when you are well enough to make the look back period. As far as transferring the home place unless you were transferring it out of his name in order to save it for your family down the road, the home place is safe no matter the amount of value as long as a spouse is living in it. The problem comes after the last spouse dies, then there is the estate recovery when it has not been protected. Most people wait until the first spouse enters a long term care arrangement to trasfer the home place, even in a trust, if you are allowed to liquid and the trust is not irrevocable, the trust and all assets within it are countable as far as Medicaid. Also, you do not have to make a 5 year look back when transferring spouse to spouse. I am sure you were also protecting family members and hope the trust is irrevocable. Better be sure.
I know absolutely nothing about divorce laws except what I've read here. Listen to Jane on this issue.
I do have experience getting my husband to get a whole set of basic paperwork done in January when he not only could sign (still can as a matter of fact) but also totally understood everything that was being done. Basic paperwork is NOT medicaid paperwork, by the way. Just two sets of wills, living wills (patient advocacy) and DPOAs. I presented it as something both of us needed to do because our old set were from a different state.
Unless things are really strange (like in Val's case) presenting it as something BOTH of you need to do tends to work.
At this point I'm as set up legally as I can be in the state of Pennsylvania where the situation on annuities is questionable. Like Jane says you don't do that anyway until you are ready to place your LO, so I have to wait. The look back won't let me put the house in my name in this state. I'll have to wait on that as well.
Having to wait, not being able to set things up to take care of both of us no matter what happens is frustrating, but to do anything else now would just mess things up. I can hope that some court will address the fact that the state courts and federal courts are disagreeing. And that is about all.
Nikki, Medicaid itself is a Federal program, and as such, the Federal rules apply in all states. However, the Federal program permits individual states to have special benefits if they wish, and so the rules can vary from state to state. In California, we even call it "Medi-Cal" rather than Medicaid. Jane is very adept at finding the rules for the individual states when we ask for help, as well as understanding and explaining the general rules that apply everywhere.
Starling, You are not subject to a transfer penalty in your state when it is spouse to spouse. You do not have a problem as far as a 5 year look back. Yes, they will look back but when it is transferred to a spouse there is no penalty in Pa.
Jane, this stuff is soooo confusing I really don't know how you make heads or tails. The trust is not irrevocable. There is more than just the homeplace (also a small condo -now a rental unit). The way I understood, if everything (including my IRA and the small business I own) were put into my trust AND we were past the lookback period, then Medicaid could not count the assets. Do I need to see another attorney???
All States to my knowledge do allow spouse to spouse transfer with no penalty. You must remember though that all assets of both spouses are considered when applying for Medicaid, there is so much in between the lines that I am afraid you all might be missing the point. The reason that spouse to spouse transfers are allowed is because they consider you one person when it comes to counting what you have no matter whose name it is in. That is the reason there is no transfer penalty, does not mean they don't count those resources. Am I making sense??
MissB, I am so sorry, I don't mean to confuse people and cause anyone to worry, I just mean that all Trusts are not created the same, even if you do make a 5 year lookback with a Trust, if the trust is controlled by you or your spouse, meaning you can control the liquidation, sale or whatever of things inside the trust, then it is irrevocable, meaing you can do what you want with it, and yes Medicaid will count it regardless, it is the same as any other asset. It is the irrevocable trusts they do not count that you also have to have a 5 year look back on.
I am so sorry I brought this up, I did not mean to worry anyone. It might be best to let sleeping dogs lie and not discuss this in such depth.
Judy, I am so sorry, I almost missed your post. No, you would not want to transfer the home to your name, not at this point, wait until such time that you need to apply for Medicaid. Your home is safe. You would not be able to do that with the DOPA at this point because it would not be in the best interest of your husband. Also some DOPA do not allow the POA to make transfers. That is one thing I would check out while he is still able to make it such.
You can use a DPOA for nothing that is not in the best interest of the person you represent. If you do not plan to file for Medicaid, then transfers should not be an issue. The times we are speaking of making these transfers to a spouse is when you are ready to apply for Medicaid, not before.
Jane thanks, yes i do understand the counting of both spouses assets regardless of names...for medicaide purposes. i was just curious. i hope to use hospice when the time comes and avoid NH or as last resort and then it would be private pay- i know everyone here is grateful and anxious for any knowledge you seem to have-which is vast!. your input here is good for knowing what added questions to ask each members own elder law atty with regards to any of your input. as we can see it seems many of these elder attys dont always see things eye to eye when setting the medicare situation up, why- no clue unless they arent as qualified as we'd like to think maybe, which in turn they better have lots of malpractice insurance..:) everyone just needs to make sure they are ok with what their atty has setup for them.. divvi
Yesm divvi, that is the only reason I offer the suggestions. It is not that I am trying to say I know and the Attorney does not know, there is no one who knows everything about this stuff including the elder law attorneys, all Attorneys are not created equal.
I studied the Medicaid laws for 8 long years, went to seminars etc. but still do not know all I would like to know and the laws keep changing, I try to stay on top of them and help when I can.
I have just finished going through the Medicaid process with two dear friends of mine here in our own State. We got one of them approved within in the 45 day span and the other one died within two weeks of our application so she did not have to complete it. We had delayed the spend down on her part, I kept telling her to make her list and then just get the spend down done in time for the checks to clear the bank before the 45 day period. Lucky we did that because in the end she did not have to spend down, he died first.
MissB, I read over my post to you when I said if you can liquidate, sale or have control of how the assets are administered that the trust is irrevocable, I meant that it is revocable meaning you have control of how the assets are used and they can and will count it. To be non counted by Medicaid, the Trust and everything inside the trust cannot be controlled by either spouse as far as being able to sale things inside the trust or liquidate in any manner. This type trust is called a Irrevocable trust, meaning it can not be changed. This is the type trust that Medicaid does not count and has a 5 year lookback. (In the previous post I used the word Irrevocable when I meant to say revocable.)
Ok, just so I can be confused a little bit more.... if they count both of our assets- or "counting what we have" Why then did they fill the paperwork out with ONLY Lynn's income and not include the house that is in my name? (always has been in my name only)
Nikki, I do not mean to confuse. I am so sorry. Why are you applying for Medicaid. The rules are different if you are applying and it is not long term care???? I only know about the long term care issues not the other Medicaid where both spouses are still living in the Community. I focused all my studies on Long term care Medicaid and also on Medicare. I worked as a Medicare Specialist in our Large Hospital. I do not go into the Medicaid issues of regular every day Medicaid, just Nursing Home Long term care.
Jane is ISN'T YOU confusing me, it is the system! I appreciate all the time you spend answering our questions! Perhaps that is it right there…. I did apply for Medicaid, but I am not planning to use it for nursing home care. The VA is more money, but it also has a state of the art dementia wing, so I want him to go there. (IF the time ever comes)
What I am interested in...it use to be called, Medicaid HCBC-ECI ...now it is called choices for independence At least here in New Hampshire LOL What it does is help people like me who want to keep their LO at home as long as possible… it offers things like
In home services ….home health nurse, personal care, help with meals Adult day care services, respite care etc etc
So maybe that IS the difference, I don’t want the long term care… Thanks for clearing that up, and again for all your valuable input and time! Nikki
In TN if I understand it right, they will take the house for reimbursement after the surviving spouse dies. We don't have much in savings and I'm not sure if Medicaid would take both his retirement check and his social security check. That would leave me with just my social security and a small check for my early retirement, that I took so I could take care of him. I hope that I can hang in there and won't need the medicaid for long term care. But who knows. Anne
Carma, That is the reason most people transfer the house to the spouse who is left in the Community, once the other spouse enters a NH, this way it does not fall into the estate Of the NH spouse and thereby escapes the reimbursement. The home then falls in the other spouses estate. This is also true for the State of Tennessee.
As for Medicaid taking his retirement check and social security, yes they will but they will also allow you the community spouse $1,750 per month to live on. If your social security and retirement check does not amount to that amount, they will take that amount from his and put it with yours to make the alloted amount for you. You will also be allowed to keep the savings, it will take different avenues to protect it that is why some people use an Elder Law Attorney. If you have the right type of help, people who know the laws then you will be able to keep all your assets and the monthly amout I mentioned. You could also apply for hardship and get up to $2,610 per month but that rarely plays out so I would not count on that.
Thank you Jane, I live in a small town and I checked but there is no Elder Lawyer at all. My DH is in stage 6 and he cannot write his name anymore, so I don't know if we could put the house in my name. Also would the 5 Year look back apply to this too? I'm sorry to make a pest out of myself, you answered so many questions already. I would not even have $1000.00 a month on my own, so I guess they would have to let me keep some of his money.
carma, the house will be safe as far as you are concered. If he is in stage 6 don't worry about transferring the house right now. If you have DPOA and it allows gifting, even gifting to you then you could do this at the time you apply for Medicaid. It would only need to be done if you are wanted to save it for your heirs, no worry about yourself it is safe for you regardless. You could even sale it and move to another place with the DPOA as long as you re-purchased another home within a certain timeframe that Medicaid allows.
Don't worry about it right now, DH might die of something else before ever needing Nursing home care. It is not a given that they will all end up in a NH.
Thank you again Jane. Two of our kids agree that they don't care about getting the house. The youngest on the other hand ask me if we could sell it to her for a $ or whatever the law allows. I told her to forget it. I used to really worry in the beginning after he was diagnosed. That was two years ago and he is now in stage 6. I rather him not have to go to a NH, but whatever happens will happen no matter what I think. You are so right about all of this. Thank you again, Oh by the way, my name is on the dead to the house too.
carma, selling the house at what they allow means not just a dollar, it means the full market value. Most states will accept the Tax value but not all states do this. You can't just sell it for less than it is worth.
Thank you Jane for your expertise. I have been sitting here thinking how wonderful it would be to have a seminar on this stuff or at lease find someone as knowledgeable as yourself. Do all hospitals employ your clone? Have you ever thought about doing your own website blog thing? This is a tough subject and you do it great justice!!
Jane, if I sold the house, and bought another, I read somewhere that it had to be of equal or greater value. The whole point in selling would be to downsize...
We have an appointment Wednesday a.m. (July 30) to make sure our ducks are all in a row. Also, have talked to our financial advisor about DH's AD. He's the one who said even though we have wills, POAs, living wills, etc., we still need an Elder Lawyer just to make sure SS, Medicare, etc. are all covered. I'll be glad when this is over. I don't like all this stuff. DH can still sign his name but I don't know how cognitive he really is. He denies he has any memory problems and had the driving reflexes of a 20-year old. He's over 82 years old. I hear through my daughter that her four brothers are all wondering when I am going to get Dad off the road. Not one of the boys have spoken to me about this. FYI, our doctor wrote to the State DMV and asked to have him retested for driving. I don't think he could pass the written exam or the driving exam. Guess who's going to get blamed for that when they take his license.....
We're in IN. My dad prepaid his funeral expenses several years before he passed at 95. Few friends were alive when he passed. Instead of a funeral, we had a simple graveside service. The funeral and all accompanying services were less than his prepay totaled; so the funeral home gave us the difference.