Applying for Medicaid: An Elder Law Attorney Can Help

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It is possible to download application forms from each state’s Medicaid agency. In fact, it would be a good idea for many seniors and family caregivers to go ahead and get a copy of these forms, if only to see what kind of information the agency requires to process an application. But a serious question remains: Should you plan and apply for Medicaid by yourself or seek professional assistance?

The truth is that Medicaid planning is not a do-it-yourself project, and applying for the long-term care Medicaid program is seldom, if ever, easy. Most people understand the questions on a Medicaid application and how to answer them. However, applicants may not understand the impact of these questions or what the state is really trying to find out by asking them.

The Benefits of Hiring an Elder Law Attorney

Elder law attorneys specialize in helping older adults with long-term care planning, estate planning and government benefits. Those with experience in Medicaid planning understand each state’s rules and regulations and help families by identifying comprehensive strategies to legally obtain and maintain eligibility for public benefits.

Avoiding Medicaid Penalties

Medicaid planning is very complex, and most people are not familiar with the various exceptions and exemptions to the gifting rules. For example, most Medicaid applications will ask if an applicant has made any gifts or other asset transfers for less than fair market value within the last 60 months (or 30 months in California). The purpose of this question is to find out whether the applicant is subject to a Medicaid penalty for having made any disqualifying transfers. If they did, the penalty would prevent the applicant from receiving Medicaid benefits for a certain number of months. This is calculated by dividing the total value of the transferred assets by the average nursing home cost in the applicant’s state (these numbers are updated and published each year).

Read: Understanding the Medicaid Look-Back Period and Penalty Period

In some cases, there are exceptions that can help applicants avoid a Medicaid penalty period. In other situations, applicants who have made disqualifying transfers during the look-back period may be better off delaying their Medicaid application. Most people aren’t familiar enough with the ins and outs of Medicaid eligibility rules to successfully avoid these pitfalls on their initial or even subsequent attempts to qualify.

For seniors who anticipate needing to apply for long-term care Medicaid within the next few years, devising a foolproof Medicaid planning strategy is the best way to ensure an application is approved. Each senior’s personal and financial situations are unique, so these strategies are not one-size-fits-all.


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Protecting the Community Spouse

The financial Medicaid eligibility rules for married couples are different from those for unmarried applicants. An elder law attorney can devise a plan for a married couple to spend down their assets to qualify for long-term Medicaid but still retain enough resources for the healthy spouse to remain in their home and cover their costs of living.

Read: Spousal Impoverishment: Medicaid Spend-Down Rules for Married Couples

Navigating the Medicaid Spend-Down Process

It may also be possible for an applicant to reorganize their assets and income in ways that help them continue living in the community for as long as possible but also ensure they will qualify for long-term care Medicaid when they need it. Applicants can retain ownership of certain types and amounts of assets while still maintaining their eligibility. In some instances, a personal care agreement is a great way for a senior to compensate their family caregiver(s) while legally spending down to meet Medicaid asset and income limits. The ways in which bank accounts and even real estate are titled can help or hurt an applicant’s Medicaid eligibility as well. Attorneys are well-versed in these and many other legal, medical and financial factors that determine if and when a senior’s application is approved.

Ensuring Timely Medicaid Eligibility

Finally, applying too early or too late can cost a senior and their family many thousands of dollars. Applying too early may result in a penalty and a longer period of ineligibility than normal. Sometimes waiting until an applicant is sure they’re eligible is the best (and most affordable) course of action. On the other hand, filing an application too late means that an elder and their family would miss out on months of long-term care Medicaid coverage while awaiting a determination. Finding the right time to apply can be very tricky and is different for each person. Failing to time things correctly can be a costly mistake.

Is Hiring a Medicaid Attorney Worth It?

Unless an applicant is absolutely sure their situation is cut and dried without any possible complications, I recommend consulting a reputable attorney with Medicaid planning experience. The attorney will review a list of your income sources and assets (including how your house and any bank or investment accounts are titled), ask you about any transfers you may have made within the last 60 months, and then suggest a plan of action to get you qualified for Medicaid much sooner than if you simply spend down your money until it is gone.

Note that it is not illegal for someone other than an attorney to assist you with the application, as long as you request them to do so. That being said, not all attorneys are knowledgeable about this very narrow area of specialization. Medicaid programs differ so much between states that most Medicaid attorneys are only familiar with the rules and regulations in the state(s) where they are licensed to practice law. If you decide that your situation warrants a lawyer’s help, be sure to look for a certified elder law attorney who has specific education and experience in the area of Medicaid planning for your state.

The cost of hiring a Medicaid attorney may seem discouraging, but most seniors need to spend down some of their assets and income to meet Medicaid’s financial limits anyway. A good lawyer will devise a personalized Medicaid planning strategy that enables an applicant to retain as much of their wealth as possible for current and future needs while ensuring they will qualify for the long-term care services they need. Planning ahead and getting this process right the first time means far less stress for seniors and their family caregivers.

Sources: California Partnership for Long-Term Care: Medi-Cal Information (https://www.dhcs.ca.gov/services/ltc/Pages/CPLTCAMedi_CalInformation.aspx)

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