Seeking an Attorney for Medicaid Application

Q: Do I need to hire an attorney to complete a Medicaid application for my dad?  He has some assets in his name, including his primary residence, which I have heard is automatically protected from Medicaid.

A: The Medicaid health care system is a tricky system to navigate with its extensive rules, regulations and exceptions.  While your dad may not have what is believed to be an “easy case, there may be important elements that are being overlooked that need to be addressed prior to, and after submitting an application.

Under the current law, an applicant for both homecare and nursing home Medicaid is afforded $15,750 in assets.  An applicant’s primary residence is considered an exempt asset so long as the home’s equity value is no more than $878,000 and the applicant or the applicant’s spouse lives in the home. Other exempt assets include tax deferred (qualified) retirement funds, annuities that are properly annuitized, life insurance policies that do not have a cash value, and German Reparation fund.  Income is treated separately from assets and the rules differ depending on whether the applicant is going to stay at home or reside in a nursing facility.  Determining if property is treated as a non-exempt asset, exempt asset, or a stream of income requires the knowledge of a skilled estate planning and elder law attorney who has a full understanding of how each asset is categorized.

Beyond the rules of eligibility, an estate planning and elder law attorney will also advise on how to deal with Medicaid’s recovery of assets from an applicant’s spouse or an applicant’s estate; asset protection; what accounts need to be transferred or spent down;  what the penalties are for transfers of assets to third parties; how to set up and fund a pooled income trust, if required, and so much more.

During the application process, which can take up to 6 months, issues may arise that need to be dealt with in a timely manner.  For example, if an application is denied because Medicaid improperly calculated an exempt resource as a non-exempt resource, you will likely want an attorney to represent you in a Fair hearing and deal with the Medicaid Agency and their attorneys to resolve the issue.  Deadlines are extremely important when it comes to responding to a Medicaid notice or decision, so having the attorney receive and review notices can help ensure that they are being properly handled in a timely fashion.

These are just some of the many complexities involved in the Medicaid process.  It is therefore always a good idea to seek the advice of an experienced estate planning and elder law attorney who will know what questions to ask and be able to guide you through the Medicaid process on behalf of your loved one.

– Michal Lipshitz, Esq. and Nancy Burner, Esq.

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