Applying for Medicaid: An Elder Law Attorney Can Help


In every state in the U.S. it is possible to obtain the forms necessary to apply for Medicaid from the state Medicaid department. Indeed, it would be a good thing to go ahead and get a copy of the necessary forms, if only to see what kind of information they require in order to process your application. But the question remains: should you fill out the application form yourself or seek professional assistance?

Mediaid forms, gifting, eligibilty and penalty periods

First of all, you can certainly complete the forms yourself if you are able to understand the questions, but you may not understand the impact of the questions or what the state is really trying to find out. For example, the form will ask you if you have made any gifts or other transfers of assets within the last 60 months. What the state is trying to find out is if you are subject to a penalty for having made any such transfers. If so, the penalty would bar you 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 your state (which is published by your state each year).

Penalty exceptions

But are you familiar with the various exceptions to the penalty, and will you be able to argue that such exceptions apply in your case, thereby avoiding any penalty? Also, if you have made transfers within the past 60 months, you may be better off not applying for Medicaid until after the 60-month period following your most recent transfer. Are you able to calculate that?

In addition, there are different ways to title joint bank accounts with children, some that are deemed immediate transfers to the child, some not. If you are married, there are completely different rules regarding treatment of joint assets, including the home. Should you transfer assets to the at-home spouse now or after applying for Medicaid?

Timing is everything

Finally, applying too early or too late can cost you and your family many thousands of dollars. Applying too early may result in a longer period of ineligibility than you would normally experience if you simply waited to apply once you are sure you're eligible. Filing an application too late means that you and your family would miss out on months of Medicaid coverage.

Should you hire an elder law attorney?

For all of the above reasons, unless you are absolutely sure your situation is cut-and-dried without any possible complications, you are well-advised to at least seek the input of an experienced attorney with Medicaid planning knowledge to evaluate your readiness to apply for Medicaid. The attorney will review a list of your 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, even most attorneys are not competent to offer assistance in this very narrow area of specialization. If you decide that your situation warrants having an attorney help you, be sure to look for an elder law attorney with specific training and experience in the area of Medicaid planning for your state.

K. Gabriel Heiser 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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Very good article. Especially the part about not all attorneys are qualified to help you! Looking for one is more of a problem than people think. Just like looking for a good doctor. Even if you do your research you might get into trouble. All say that they are topped in their field. No one is in the middle or lower on the bell shaped curve. How can that be?
In Connecticut, we are very lucky to have Medicaid For You, they are the very best when you want to apply for Medicaid for yourself or elderly parent (s)! With an attorney, the cost are not controlled and/or much higher than the flat fee they charge and you then have to compile and retrieve a great deal of financial records and info. With MEDICAID FOR YOU, it is so very much less stressful, time consuming on your part, they pretty much took care of everything. They met with Mom and my sisters once, in a rehab facility, scanned all documents we did have, took all the info to obtain records from banks etc; and we were done with that phase. They then proceeded to facilitate doing all the documentation and fullfill the balance of the application process in a very quick and timely fashion. Kept us updated regularly on the progress, helped with the spend down process advice, answered any and all questions usually the same day. Within 3 months, Mom was pre approved and once the spend down sum was within $1500.00 the then obtained the final approval. Seamlessly, efficiently and even during the most stressful time of Mom having been hospitalized from the retirement home and then to a rehab facility from which long term SNF care was necessary and her Medicaid approval was critical in helping us achieve our goal of having Mom admitted to a Nursing Home of Our choosing. Without them we would never have gotten thru it all, in such a smooth, timely, efficient and effective manner.
1 local attorney (friend's referral) said it was so specialized an area of law that he would have to learn a new specialty. He could not recommend anyone. The second local attorney I found in the phone book. He has limited experience so would handle some things but not others. I located an attorney online and 40 miles away - the only fully qualified attorney within 100 miles. This attorney works mostly with VA cases. Next I tried legal services for the poor. They said did not work cases like ours. They bumped it up to a very qualified Medicaid attorney in the state's capital - a 100 miles away. He asked me to fax all my information. He asked for a name/number of a contact person. He initiated a 3-way call. He asked "WHY hasn't the application been approved by now"? He told the contact person there is no reason to not approve if everything is the way I stated. The attorney gave her a few hints for how to deal with Medicaid. He said the 3 of us should not even need this conversation. The facility should be paid and I should not have it unresolved after this long. He said during the 3-way call that he was available for hire by either me or the facility, but neither should have to do this. I received a call from a case worker about a month later. She made a passing reference to an attorney. I don't know if that meant word got to her that an attorney may be involved. Approval notices all came at once (in the 9th month following initial application). I paid a month's deposit to the snf, paid for other services and about 10 months out started getting refunded for the deposit and other covered costs. I don't know if this cash will be used against us this next certification. I used most of it for delayed urchases/services.