K. Gabriel Heiser
Attorney, author, Medicaid asset protection planning
K. Gabriel Heiser, J.D., is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.
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Question
My Mom has CD's in " trust for " her grandchildren. Are they safe from Medicaid?
An account set up by a person "in trust for" another person is the same as a POD ("Pay On Death") account, i.e., the... An account set up by a person "in trust for" another person is the same as a POD ("Pay On Death") account, i.e., the person who set up the account and put the money in the account continues to be the owner of the money with full control, but upon their death the remaining funds in the account pass automatically to the named beneficiary. So, as far as Medicaid is concerned, such an account is considered to be 100% the funds of the person who set up the account and funded it. see more
Question
Will Medicaid take their money?
Different states have different thresholds below which they do not file a claim against the estate of the deceased Medicaid recipient. This... Different states have different thresholds below which they do not file a claim against the estate of the deceased Medicaid recipient. This is done for administrative purposes, i.e., it is just "not worth the bother" to the state to go after estates they deem to be too small. Note that under federal law there is no such de minimis amount.
In any event, the state must file a claim and if they never do so, you are in the clear. However, some states have recently taken the position that they must be affirmatively notified of the death of the Medicaid recipient, such as by the opening of a probate court case by the estate. As you can see, different states, different rules! That's what makes this area of law so confusing for the lay person.
If it is not worth the money to hire an attorney to advise you, at least check with the state Medicaid department to try to find out which of these rules applies to you. see more
In any event, the state must file a claim and if they never do so, you are in the clear. However, some states have recently taken the position that they must be affirmatively notified of the death of the Medicaid recipient, such as by the opening of a probate court case by the estate. As you can see, different states, different rules! That's what makes this area of law so confusing for the lay person.
If it is not worth the money to hire an attorney to advise you, at least check with the state Medicaid department to try to find out which of these rules applies to you. see more
Question
What is the cheapest and easiest way to have your Mom appoint you her POA?
Forms from a stationer are better than nothing, but always omit useful powers such as the power to transfer assets for Medicaid planning!... Forms from a stationer are better than nothing, but always omit useful powers such as the power to transfer assets for Medicaid planning! Thus, be aware that the basic forms you can buy cheaply are just that: basic. Again, better than nothing, but depending on what happens down the road, you may be sorry you didn't pay an attorney $150 for a better form. see more
Question
What do I need to know about Medicaid spend down?
Regarding lawyer fees for Medicaid planning: Most seem to charge a flat fee, which can range from $5,000 to $10,000 or more (obviously it... Regarding lawyer fees for Medicaid planning: Most seem to charge a flat fee, which can range from $5,000 to $10,000 or more (obviously it costs more to do planning for a married couple than a single/widowed/divorced person alone). Some will just charge by the hour. So it varies. Thus, it's important to get a good estimate of the fees up front, so you know what you're dealing with. Also, does the quoted fee include any documents, such as a trust, or is that extra? If extra, how much will THAT cost?
Unfortunately, in many cases it really is quite complicated and worth the high fees it will take to come up a good plan. In other cases, it may be possible to whittle down the extra funds with just a few simple planning devices and minimal legal fees.
That's why I always suggest arming yourself with good information and advice BEFORE visiting an attorney's office, so you'll be able to sense if they know what they are talking about and you won't feel like you're completely in the dark about the subject at hand. (And why I wrote my book!) see more
Unfortunately, in many cases it really is quite complicated and worth the high fees it will take to come up a good plan. In other cases, it may be possible to whittle down the extra funds with just a few simple planning devices and minimal legal fees.
That's why I always suggest arming yourself with good information and advice BEFORE visiting an attorney's office, so you'll be able to sense if they know what they are talking about and you won't feel like you're completely in the dark about the subject at hand. (And why I wrote my book!) see more
Question
What do I need to know about Medicaid spend down?
There are many variables, such as how much money your mother still has, whether there is any real estate, and what state you live in! A... There are many variables, such as how much money your mother still has, whether there is any real estate, and what state you live in! A good place to start, to both review the rules of Medicaid eligibility as well as all of the current planning techniques, would be the book "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets." (www.MedicaidSecrets.com)
Since I wrote this book 8 years ago, it has helped thousands of people understand the complex Medicaid rules.
If you decide to read it (available in some libraries, too), be sure to post any questions on this site and I will try to answer them. Thanks and good luck! see more
Since I wrote this book 8 years ago, it has helped thousands of people understand the complex Medicaid rules.
If you decide to read it (available in some libraries, too), be sure to post any questions on this site and I will try to answer them. Thanks and good luck! see more
Question
My father can't sign his name because of arthritis. Can I witness his mark?
Indeed if your father is willing, get him to give you a durable power of attorney, to facilitate such transactions in the future.... Indeed if your father is willing, get him to give you a durable power of attorney, to facilitate such transactions in the future. You'll need the notary just one time, when you sign the POA, but thereafter just your signature will suffice to take care of business for your father. see more
Question
My father can't sign his name because of arthritis. Can I witness his mark?
Typically a "mark" made by a competent adult will suffice legally for a full signature. It should be witnessed, with the witness... Typically a "mark" made by a competent adult will suffice legally for a full signature. It should be witnessed, with the witness signing in full. see more
Question
How much property can I leave my disabled daughter and still qualify for Medicaid?
Note that a transfer of assets--even the home--to a disabled child will not result in a penalty (but be careful that you don't cause... Note that a transfer of assets--even the home--to a disabled child will not result in a penalty (but be careful that you don't cause the child to lose their OWN eligibility for government benefits. Consider transferring to a special needs trust for the child, instead). see more
Question
Dad removed me from POA, doctor says he's now incompetent. Mom, now incompetent has POA. Will it revert back t...
The two questions are: (i) was your father incompetent at the time he removed you from POA (Power of Attorney form), and (ii) does the POA... The two questions are: (i) was your father incompetent at the time he removed you from POA (Power of Attorney form), and (ii) does the POA document itself indicate an order of succession if one person can no longer serve? Unfortunately, if there are differing viewpoints from the parties involved, only a judge can settle the dispute, and you already know how expensive that is.
A better solution may well be to forget about the POAs entirely and seek a court-sanctioned guardianship or conservatorship. I would shop around to find an attorney that can handle this for you for a reasonable fee. Perhaps a younger attorney just getting started might be a better option with a lower fee. see more
A better solution may well be to forget about the POAs entirely and seek a court-sanctioned guardianship or conservatorship. I would shop around to find an attorney that can handle this for you for a reasonable fee. Perhaps a younger attorney just getting started might be a better option with a lower fee. see more
Question
What will be our financial liability if mother-in-law goes into a nursing home?
Although the filial responsibility laws have been on the books for years in a number of states (see other answers posted here), they have... Although the filial responsibility laws have been on the books for years in a number of states (see other answers posted here), they have only been enforced in a very few cases in a very few states, and only recently.
In any event, they do not appear to affect Medicaid eligibility, which looks only to the resources of the applicant (and spouse, if any), and never the children.
The bottom line is that if your mother-in-law simply spent down her money and now qualifies for Medicaid, then you personally have nothing to worry about: the state cannot and will not come after your personal assets now or at any future time. see more
In any event, they do not appear to affect Medicaid eligibility, which looks only to the resources of the applicant (and spouse, if any), and never the children.
The bottom line is that if your mother-in-law simply spent down her money and now qualifies for Medicaid, then you personally have nothing to worry about: the state cannot and will not come after your personal assets now or at any future time. see more
Question
When my mother's income is utilized by Medicaid, how do her bills get paid?
If a person enters a nursing home with the understanding they will be applying for Medicaid, and they are denied because of transfers made... If a person enters a nursing home with the understanding they will be applying for Medicaid, and they are denied because of transfers made within the 5-year lookback period, the nursing home can demand payment or even arrange for a transfer, under federal law. Indeed, sometimes the best solution is simply to pay privately until the 5-year lookback period expires, and THEN apply for Medicaid. see more
Question
Does Medicaid take away funding for nursing home care if the patients home is foreclosed on?
If the mortgage payments on a loan against a house fall behind, the bank will eventually foreclose on the house, i.e., sell the house to... If the mortgage payments on a loan against a house fall behind, the bank will eventually foreclose on the house, i.e., sell the house to repay the debt owed to the bank. If the amount owed to the bank is less than the net proceeds from the sale, then there will be money left over, which would belong to your mother. As such, it indeed could affect your mother's Medicaid eligibility.
For example, if the house sells for $100,000, but the bank is only owed $75,000, then the extra $25,000 left over after paying off the balance of the mortgage will be a countable resource for Medicaid eligibility purposes. When it was invested in the house, it was an exempt resource, but now it's just cash in the bank, which is countable. That would cause your mother to have too much money to qualify for Medicaid, unless it is spent down or converted to a non-countable asset in the same month it became available to your mother. see more
For example, if the house sells for $100,000, but the bank is only owed $75,000, then the extra $25,000 left over after paying off the balance of the mortgage will be a countable resource for Medicaid eligibility purposes. When it was invested in the house, it was an exempt resource, but now it's just cash in the bank, which is countable. That would cause your mother to have too much money to qualify for Medicaid, unless it is spent down or converted to a non-countable asset in the same month it became available to your mother. see more
Question
My husband borrowed money from his mother's estate for family. As the survivor, am I required to pay back the...
I'm not totally sure of the sequence of events, but if your husband borrowed money from his mother before she died, and then he died... I'm not totally sure of the sequence of events, but if your husband borrowed money from his mother before she died, and then he died before her, his estate would still owe the money to his mother. It would be a debt of HIS estate, owing to his mother. If that debt were not paid off before his mother later died, that debt would not be discharge but would now pass to his mother's estate. Thus, the executor of his mother's estate would be under an obligation to try to seek repayment of that outstanding debt so the executor can distribute it to his mother's heirs (or beneficiaries under her will, as the case may be). see more
Question
Can a trust be established that would protect dependent child & longtime caregiver sibling from dad giving awa...
While it's true that the Trustee of a revocable trust has complete control over the assets titled in the name of the trust, all the... While it's true that the Trustee of a revocable trust has complete control over the assets titled in the name of the trust, all the creator of the trust needs to do to gain back access to the trust is to revoke it. Also, revocable trusts are always amendable, so once again the creator of the trust can simply change the terms of the trust distributions at any time. For these reasons, a revocable trust cannot be counted on to insulate the parent from potential undue influence. see more
Question
Will my mother still be eligible for Medicaid if I claim her on my taxes?
If you do not file a federal income tax return, your sister cannot claim your son as a dependent on her federal income tax return. If you... If you do not file a federal income tax return, your sister cannot claim your son as a dependent on her federal income tax return. If you had to file a return, it gets complicated. Search for "Tiebreaker rules" here, then read the sections set forth there: http://www.irs.gov/publications/p501/ar02.html#en_US_2012_publink1000220939 see more
Question
Is it best to assume that Medi-Cal will be needed in the future when caring for a parent & structure their fin...
Planning at least 5 years in advance is certainly the most ideal, since then you can take advantage of many more options. After five years,... Planning at least 5 years in advance is certainly the most ideal, since then you can take advantage of many more options. After five years, you won't have to worry about a penalty for transfers (say, to an irrevocable trust), since the lookback period will have expired. You may wish to review the long-term planning chapters of my book on Medicaid planning, here: www.MedicaidSecrets.com see more
Question
Mom appointed her boyfriend conservator of her money because he lives in the same apartment. What happens if h...
Some other interested party will need to petition the local probate court to be appointed the successor conservator. If you are interested... Some other interested party will need to petition the local probate court to be appointed the successor conservator. If you are interested in taking on that role, then you should find an attorney that is familiar with this type of work to represent you and get you appointed as your mom's conservator. see more
Question
Can I lose my Medicaid benefits with a reverse mortgage?
Your home will continue to be an exempt asset for Medicaid eligibility purposes. Each payment to you from the reverse mortgage is not... Your home will continue to be an exempt asset for Medicaid eligibility purposes. Each payment to you from the reverse mortgage is not considered "income" under the Medicaid rules, but it will count as an asset to the extent any of it is not spent during the month of receipt. Merely having a line of credit against the house (i.e., the bank says you can borrow up to $X against your equity in the house) is not a countable asset. I hope that helps!
I have a section in my book on reverse mortgages, when they are useful and when not, as well as a great alternative, the "private reverse mortgage." see more
I have a section in my book on reverse mortgages, when they are useful and when not, as well as a great alternative, the "private reverse mortgage." see more
Question
What is the difference between an Estate Lawyer and an Elder Law Attorney?
Having practiced both elder law AND estate planning for 25 years, I can give you a good answer on this: An estate lawyer is an attorney... Having practiced both elder law AND estate planning for 25 years, I can give you a good answer on this:
An estate lawyer is an attorney who handles the affairs of an estate, i.e., the property, money, and other legal interests of a deceased individual. They will need to go to the local probate court if the individual died with a will, contact heirs and anyone else mentioned in the will, prepare and file accountings on behalf of the executor, and make sure all debts are paid and the balance of the estate properly distributed. If the deceased has a revocable trust, they will also assist the trustee in following the terms of the trust at this point.
An estate PLANNING attorney, on the other hand, meets with individuals before they die! Their role is to help the client determine how they want their estate distributed (e.g., 10% to Aunt Sally, 25% to Brother Joe, 5% to my alma mater, all my Chinese tea-cups to Martha, etc.), suggest ways to minimize estate taxes (for very large estates), prepare wills, living trusts, powers of attorney, health care powers of attorney, etc.
An elder law attorney focuses on the needs of senior citizens, which may overlap those duties discussed above. There may be issues to be dealt with in the care of a disabled and/or incapacitated senior: seeking a court-appointed guardianship or conservatorship, reviewing public assistance options, etc. However, it will also include planning for long-term care in a nursing home. This is where the sub-specialty of Medicaid planning comes in. The attorney will assess the current income and assets of the client, review their family situation, look at the client's current health, and then come up with a plan to maximize the availability of Medicaid to help pay for the client's long-term care. As such, it may include suggestions such as making gifts to family members, setting up an irrevocable trust, deeding the home in a life estate, and so on.
Note that many attorneys handle all three categories, although not necessarily. Thus, not every elder law attorney will handle guardianship cases, and not every estate planning attorney will be an expert on Medicaid planning. Thus, it's always a good idea to review the website of any attorney whose name you receive, to try to find out their various areas of expertise and experience. see more
An estate lawyer is an attorney who handles the affairs of an estate, i.e., the property, money, and other legal interests of a deceased individual. They will need to go to the local probate court if the individual died with a will, contact heirs and anyone else mentioned in the will, prepare and file accountings on behalf of the executor, and make sure all debts are paid and the balance of the estate properly distributed. If the deceased has a revocable trust, they will also assist the trustee in following the terms of the trust at this point.
An estate PLANNING attorney, on the other hand, meets with individuals before they die! Their role is to help the client determine how they want their estate distributed (e.g., 10% to Aunt Sally, 25% to Brother Joe, 5% to my alma mater, all my Chinese tea-cups to Martha, etc.), suggest ways to minimize estate taxes (for very large estates), prepare wills, living trusts, powers of attorney, health care powers of attorney, etc.
An elder law attorney focuses on the needs of senior citizens, which may overlap those duties discussed above. There may be issues to be dealt with in the care of a disabled and/or incapacitated senior: seeking a court-appointed guardianship or conservatorship, reviewing public assistance options, etc. However, it will also include planning for long-term care in a nursing home. This is where the sub-specialty of Medicaid planning comes in. The attorney will assess the current income and assets of the client, review their family situation, look at the client's current health, and then come up with a plan to maximize the availability of Medicaid to help pay for the client's long-term care. As such, it may include suggestions such as making gifts to family members, setting up an irrevocable trust, deeding the home in a life estate, and so on.
Note that many attorneys handle all three categories, although not necessarily. Thus, not every elder law attorney will handle guardianship cases, and not every estate planning attorney will be an expert on Medicaid planning. Thus, it's always a good idea to review the website of any attorney whose name you receive, to try to find out their various areas of expertise and experience. see more
My Mom has CD's in " trust for " her grandchildren. Are they safe from Medicaid?