Comments on: Protect Your Home From Medicaid Liens – Part 2 (April 2010)

By: Sanford Okura

Sanford Okura — Tue, 10 Jan 2012 04:47:04 +0000

@Brenda – Generally, if an adult child (your brother) has been living with mother for more than 2 years before she enters a nursing home, and has been providing care to help her stay at home, a transfer of the home can be made to that child without causing any Medicaid penalty. Your family needs to find an attorney in Texas who is expert in Medicaid Planning to help you with this situation. You need to find competent legal help right away, because once the government does place a lien on the home, it is too late. If you would like one of the attorneys from our law firm to help you, we could help find the right attorney in Texas, then act as co-counsel with that attorney. I hope things work out for your family.

By: Brenda Robertson

Brenda Robertson — Sat, 07 Jan 2012 00:35:27 +0000

Aloha from hawaii Brenda
I have been reading about what medicaid can do. I am 62 and my mother is 86 in texas and needs to go a nursing home. She lives with two of her sons, one has been living with her for 10 years or so. My older brother that lives in his own home, wants all of us to put her in a nursing home so she can the care she needs. I do ageed. One of the social workers called the other day and told that they would own all of her home to pay for the nursing home. My mom she said she wrote a will along time ago, but no one has found it. I hate to see the government take what she has work so hard for. The home is worth about 70,000 This has not happen yet. What is the best way to handle the problem. The sons at the house are not taking the care she needs. I am sure going to take care of my home in hawaii before anything happening to me.
Thanks so
Brenda

By: Sanford Okura

Sanford Okura — Wed, 06 Jul 2011 04:54:12 +0000

@Donna – You don’t have to sell the home, but if your mother starts getting Medicaid benefits and continues to own the home, the government will probably be able to place a Medicaid lien on the home, which would enable them to collect out of the equity in the home, when your mother passes away, all the money they paid for nursing home costs. If you have lived in the home with your mother for 2 years or longer before she entered the nursing home, it may be possible to have the home transferred to you, without any penalty, BEFORE the lien is placed. If you did not live in the home for 2 years or more with your mother, selling the home may be the better option, because you may be able to protect some of the money from the sale of the home. I strongly recommend that you follow the same advice I gave SuLee above and find an attorney, but look for an attorney in New York instead of California. Don’t do anything until you find and hire the right attorney who can help you with protecting assets from nursing home costs in New York. Move quickly before a lien is placed on the home. Good luck.

By: Sanford Okura

Sanford Okura — Wed, 06 Jul 2011 04:42:14 +0000

@SuLee – Selling the house was probably not a mistake, because if you had not sold it and your mother got on Medicaid, the government would have placed a Medicaid lien on the home, and it would likely have been lost. It may be possible to protect some of the money from the sale of the home, but it will probably not be possible to protect all of it. You really need the help of an attorney in California who is an expert in Medi-Cal, and who has a good reputation. I suggest that you search for such an attorney by going to http://www.martindale.com, and do a search for an attorney 1) who lives anywhere in the State of California (it doesn’t have to be close to where your mother lives); 2) with a “peer review rating” of AV or BV (which means he or she is rated by other attorneys as being both competent and ethical) and 3) practices in the area of Medicaid or Medi-Cal (but not representing the health care industry). The last time I did such a search, I found only 2 in the entire state of California who met all these criteria. When you talk to the attorney, make sure he or she has substantial experience helping protect assets for someone in your mother’s situation.

By: Donna D

Donna D — Sun, 22 May 2011 02:13:43 +0000

Hi, I live in New York State, I am in need of some HELP!!My Mother signed her home over to me and she kept “life use” last April 2010 , she is 86 years old. Well she is physically in excellent health but within the last 6 months been diagnosed with Alzheimer disease. I am an only child, age 55 and work full time, but would do all her shopping, cleaning, banking etc.. She was doing okay at home until 2 weeks ago when she began wandering at night. I would get calls from her neighbors and the police in the middle of the night. Her doctor said she had “sun downers” and needed to be in a nursing home. She was taken into a nursing home immediately…They say that I must sell the house immediately and turn the money over to the nursing home in order for her to get medicaid. Is this true??
They also said that when her social security check and retirement come I must turn over them to the nursing home. My mother gets $600 a month retirement and 900 a month social security…I don’t mind giving them all her money for her care but do I have to sell the home also??? Please help me.

By: SuLee

SuLee — Wed, 04 May 2011 03:38:21 +0000

Dear Mr. Okura,

I am getting ready to sign paperwork to close the sale of my Mom’s home in WA state tomorrow as her financial POA because she is currently living in CA and completely paralyzed.

She moved there at the end of last October and was placed in a nursing home at the end of March, 2011 because the care got to be too much for my two Aunts. She currently has Medicare and Medi-Cal.

We put her home up for sale because she needed the money to hire a full time caregiver and had no cash to do so. Now i think we might be regretting our decision. She will net about 120K after closing.

Medicare will pay the first 100 days of her nursing care and then Medi-Cal kicks in. In the mean time, what do we do to protect this money so that it is not taken by the state and can continued to be used toward a caregiver while she is in a nursing home or adult/boarding care home while she is still living?

She had so little, we did not realize more would need to be done to protect her very small estate.

Thanks in advance and blessings for all of your wonderful answers above.

By: Sanford Okura

Sanford Okura — Tue, 12 Apr 2011 01:42:14 +0000

@John – You are welcome! I will do some research to find a qualified attorney in Indiana to whom I can refer you.

By: John

John — Sun, 10 Apr 2011 12:46:52 +0000

It seems that most attorneys I have written to (local) simply write back and say “we would be happy to represent your parents in applying for Medicaid” and totally disregard the fact that I am asking a question about my home (one even said helping me with my home would be a conflict of interest despite the fact I was the one who contacted him). Thank you SOOOO much for actually addressing my concerns and with such detail. I greatly appreciate your advice and assistance. I have been trying to tell my sister that my home should be protected by the events of the past years (i.e.: the “constructive trust” and the paper in the hands of the attorney) but she has been convinced…first that placing it in a trust now would protect it…or now that we are being faced with a move, that if it is being rented and providing income, it will protect it (however my wife and I would see no benefit to that as we would not see that rent…and we will be counting on some sort of income from the home in order to offset our living expenses at our new location). She told me that if it was being rented and the income was going to my parents, that at some point (in a couple years) perhaps my parent’s could “flip” the home back to me…but that doesn’t make any sense to me as I think that would be seen by Medicaid as truly transferring property at a loss…why would they allow you to transfer an income producing property out of their hands without some sort of payoff amount? Doesn’t make sense to me. But these are the things she is being told to do by these consultants who I am sure don’t know the details of my home.

I will contact you via e-mail in regard to finding someone local who can hopefully help me if needed. Again, thank you so much for your advice and actually answering the questions I have!

By: Sanford Okura

Sanford Okura — Sat, 09 Apr 2011 18:15:42 +0000

@John – You write very well. You have a number of different issues,and you described clearly in detail relevant facts surrounding those issues. I will address each of the issues you raised. First, as to the title to your home, it certainly sounds to me like you are entitled to most or all of the value of the home. When your parents first told you that the house would be placed in a trust and would be returned to you in 10 years, even though no written trust document was drawn up, it may be possible to argue that a “constructive trust” had been formed, and that your parents are obligated to turn the property over to you now that more than 10 years have gone by. If for some reason that argument doesn’t work, the $80,000 you poured into the property should entitle you to at least a portion of the equity in the property. Finally, since you were told that the amounts you owed your parents were given to you as a gift, and an attorney holds a piece of paper so stating, it seems to me that you are entitled to all of the beneficial interest in the property, and that your parents only hold the legal title. If you or your parents were my client, based on the information you have given me, I would probably simply have your parents sign a deed now, transferring the legal title to you, but claiming that there was no value being transferred to you at this time, because either this transfer is the fulfilling of the constructive trust set up many years ago, or is the paperwork following up on the gift which was made to you more than 5 years ago. (Do check your dates – you said it was a wedding gift and that you were married in 2007, which is less than 5 years ago, but then you also said this forgiveness of debt occurred more than 5 years ago.) Second, you mention that your sister is getting advice from “senior services” people. I have seen a number of cases in which well meaning social workers or other “senior services” people have given the wrong advice to the elderly or their families. When these families have come to our law firm for advice, we have had to straighten them out on the wrong advice they had received earlier. The Mediciad laws are very complicated, and many times even the Medicaid workers themselves are undertrained and overworked and do not understand certain Medicaid laws. You must get the advice of a competent, honest, intelligent attorney who has substantial experience in Medicaid Eligibility Planning. Third, you mentioned substantial other assets that your parents own. These assets do not necessarily have to be lost. By proper planning, it is often possible to save some of the assets, and sometimes all of the assets. Your sister’s idea of placing these assets into a trust may be a good idea or a very bad idea, depending on what kind of trust she is talking about, and what the additional aspects to the plan are. Again, this is a very complicated area, and you must get the help of a knowledgeable Medicaid Planning attorney. Fourth, you mentioned your concern about not wanting to cheat the system. I absolutely agree with you. You never want to attempt to cheat the system, because the crime of Medicaid fraud can land a cheater in prison. However, there are enough legal ways to qualify for Medicaid while saving some of the assets for the family that it is not necessary to throw up your hands and give up all of the assets. Fifth, you mentioned renting the home. If the home stayed in your parents name, they probably wouldn’t qualify for Medicaid anyway, and if they did, any rent from the home would have to go to the nursing home. If you follow my suggestion above and just have the property transferred to you, any rent would go to you. Sixth, you mentioned your father being a disabled veteran. The rule at our local veteran’s care home, and probably everywhere, is that a veteran must have been disabled 70% or more while on active duty to qualify for free nursing home care. Seventh, an important question is: who has the power to act on behalf of your mother if she is incapacitated? Somebody in your family – your father or one or more of the children – needs to hire an attorney with expertise in Medicaid planning soon to help you figure out the best course of action. Please understand that all that I have said above is based on my knowledge of Hawaii law, and it is important that you get advice from a competent attorney in your state. If you need help findng such an attorney, email me or phone me, and I will see if I can help you find the right attorney. Good luck to you.

By: Sanford Okura

Sanford Okura — Fri, 08 Apr 2011 03:24:05 +0000

@Cheryl – In Hawaii (and this rule is probably similar in many states), if the house is transferred to a disabled child or to an adult child who has been living in the home for at least two years before the parent is admitted to a nursing home, and if such adult child was providing care to enable the parent to remain in the home, then there is no Medicaid penalty for that transfer, and there would be no problem. (Although if the disabled child is on SSI or Medicaid, there could be a problem for the disabled child.) No lien could be placed on the home, because the parent no longer lives in the home. However, if the home is transferred to a child who is not disabled and has not lived in the home for at least two years, then there would be a problem if the parent goes into a nursing home and applies for Medicaid within five years after that transfer. Five years is the look-back period. When a person applies for Medicaid to pay for nursing home costs, the government looks backwards to see if any transfers were made during the last 5 years. If there was any transfer made for less than fair market value of the asset transferred, then a Medicaid penalty is assessed. The penalty is the number of months that the government will not provide Medicaid help. In Hawaii, the penalty is calculated by dividing the value of the gift by $8,850 per month. For example, if a parent transfers property worth $88,500 to a child who is not exempt from the transfer penalty, the length of the penalty is calculated by dividing $88,500 by $8,850 per month. In this example, the penalty would be 10 months. The $8,850 figure is used, because the government has determined the average cost of nursing home care in Hawaii to be $8,850 per month. Once the property is transferred, the government cannot place a lien on the property. However, if the parent ends up in a nursing home and applies for Medicaid before 5 years go by (to be safe, you should not apply until the next calendar month after 5 years have gone by), the government will not provide Medicaid help, and there will be a big problem even though there is no lien on the home. Often, the child has to sell the home and pay for the parent’s care until the penalty is over. Also, there are some ways of transferring a home that are better than others, for example to reduce capital gains taxes upon eventual sale of the home. Before you do any transfer of property, it would be important to consult with an attorney in your own state who is experienced in Medicaid planning.