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
Can my son and family move into my home without me losing Medicaid?
Yes, your son his family can move in with you. It will not affect your Medicaid in any way. Of course, if they pay you rent it is taxable... Yes, your son his family can move in with you. It will not affect your Medicaid in any way. Of course, if they pay you rent it is taxable income and also will affect your Medicaid, but if they live their rent-free, as long as you continue to reside there, it will not affect Medicaid.
The other comments regarding a care agreement are applicable only if you wish to pay your son to take care of you, as a way of reducing your income or countable assets in order to qualify for Medicaid. If you already are qualified, then this is irrelevant. see more
The other comments regarding a care agreement are applicable only if you wish to pay your son to take care of you, as a way of reducing your income or countable assets in order to qualify for Medicaid. If you already are qualified, then this is irrelevant. see more
Question
Is my sister responsible for my aunt's hospital bills if she cannot afford them?
The guardian is required to use the assets of the ward, not their own assets. So if your aunt has a bill, your sister--as guardian--has no... The guardian is required to use the assets of the ward, not their own assets. So if your aunt has a bill, your sister--as guardian--has no personal liability for those bills. She must pay the bills out of your aunt's assets, if any, but that's as far as her liability goes. see more
Question
I am on my children's savings and checking accounts. Will this be a problem with the Medicaid five-year look b...
The rule for joint bank accounts when one of the owners applies for Medicaid: 100% of the funds are deemed owned by the Medicaid applicant... The rule for joint bank accounts when one of the owners applies for Medicaid: 100% of the funds are deemed owned by the Medicaid applicant except to the extent the other owner(s) can prove contribution of funds to the account. So, to avoid having to go through that, it's safer just to take your name off the accounts. Since none of the money in the accounts came from you, doing so is not a gift and there is no penalty for doing so even if you need to apply for Medicaid within the next 5 years. see more
Question
Medicaid was declined. Now what?
Ralph Robbins makes some good points. Also, it may be possible to go to court with a "petition to partition" the jointly owned... Ralph Robbins makes some good points. Also, it may be possible to go to court with a "petition to partition" the jointly owned homes, separating them. Then, the one determined to be owned by your dad will be exempt under the home residence rule, and he should then qualify for Medicaid. see more
Question
My brother passed away, he had power of attorney for mom. How do I transfer power of attorney to me?
As others have said, if there is no successor named in the POA document itself, the POA is rendered useless upon the death of the name... As others have said, if there is no successor named in the POA document itself, the POA is rendered useless upon the death of the name agent. Since your mother is now not legally able to sign a new POA, your only option is to go to the local probate court and seek to be appointed her guardian and conservator. see more
Question
Can 401K money be protected from Medicaid by turning into an annuity-monthly payments?
Yes, indeed it should be possible to convert the 401(k) assets to an immediate annuity that meets the "Medicaid annuity" rules.... Yes, indeed it should be possible to convert the 401(k) assets to an immediate annuity that meets the "Medicaid annuity" rules. Each month, a fixed amount is payable to the annuitant, and is counted as income for Medicaid eligibility purposes. But the retirement asset itself will NOT be counted as an asset, assuming the annuity meets the rules. Note also that in some states IRAs and 401(k)s are exempt from being counted at all, for Medicaid eligibility purposes, (though in some states only for a spouse in the community vs the spouse in the nursing home) so be sure to check that out, first! see more
Question
Can my mom legally pay me as a caregiver from her Miller Income Trust?
The specifics vary from state to state. Research the terms "qualified income trust [name of your state]". Here is the rule in... The specifics vary from state to state. Research the terms "qualified income trust [name of your state]". Here is the rule in Georgia, for example:
(1) all of the income placed in the trust be disbursed in the month received, and (2) that the only disbursements from the trust shall be for (a) the Beneficiary's "personal needs allowance" as amended from time to time, (b) a spousal allocation in favor of a community spouse, if any, (c) payment to the nursing home provider, if Beneficiary is institutionalized, and (d) medical expenses not subject to third party payment. see more
(1) all of the income placed in the trust be disbursed in the month received, and (2) that the only disbursements from the trust shall be for (a) the Beneficiary's "personal needs allowance" as amended from time to time, (b) a spousal allocation in favor of a community spouse, if any, (c) payment to the nursing home provider, if Beneficiary is institutionalized, and (d) medical expenses not subject to third party payment. see more
Question
What have you learned about protecting assets?
As an attorney who has for 25 years advised people in your exact situation, I am quite sympathetic. The laws and regulations are complex... As an attorney who has for 25 years advised people in your exact situation, I am quite sympathetic. The laws and regulations are complex and confusing, with variations from state to state. My suggestion would be to get a copy of my book, How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets and then post on this forum again with any further questions.
I notice a large number of responses here that want to castigate anyone who wishes to avail themselves of the laws and perhaps save some of their hard-earned life savings for "extras" in their old age or even to pass on to the next generation. Would they take such a harsh position were you to ask them for tax advice to save taxes? In both cases you are (i) taking advantage of clearly legal options to save money and (ii) shifting costs to other taxpayers. Of course, you are free to pay more taxes than you are legally required to do, just as you are free to pay every dime of your life savings to nursing homes when there are legal ways to protect your assets (which is the point of my book!). Only you can decide which route to follow. see more
I notice a large number of responses here that want to castigate anyone who wishes to avail themselves of the laws and perhaps save some of their hard-earned life savings for "extras" in their old age or even to pass on to the next generation. Would they take such a harsh position were you to ask them for tax advice to save taxes? In both cases you are (i) taking advantage of clearly legal options to save money and (ii) shifting costs to other taxpayers. Of course, you are free to pay more taxes than you are legally required to do, just as you are free to pay every dime of your life savings to nursing homes when there are legal ways to protect your assets (which is the point of my book!). Only you can decide which route to follow. see more
Question
Can a living trust become "stale"?
Living trusts--unlike powers of attorney--do not become "stale," and they can continue to be amended as set forth in the trust... Living trusts--unlike powers of attorney--do not become "stale," and they can continue to be amended as set forth in the trust document itself. If the trust was a joint trust signed by two people, be sure that it can still be amended by the survivor. If so, then, yes, your mother can have an amendment prepared by an attorney and signed by her to carry out her current wishes as the distribution of the trust property.
As others have noted, if there is property outside of the trust, it will not be affected by the trust terms. Such property will pass according to your mom's will. That being said, if the will is a "pour-over" will (which directs all property to be added to the trust), then indeed it all WILL wind up in the trust and be governed by the terms thereof. see more
As others have noted, if there is property outside of the trust, it will not be affected by the trust terms. Such property will pass according to your mom's will. That being said, if the will is a "pour-over" will (which directs all property to be added to the trust), then indeed it all WILL wind up in the trust and be governed by the terms thereof. see more
Question
Bank of America refuses to accept a stale DPOA. What can I do?
Unfortunately, with a twenty-year-old POA, the bank is nervous, thinking it may have been revoked in the intervening years. At this point,... Unfortunately, with a twenty-year-old POA, the bank is nervous, thinking it may have been revoked in the intervening years. At this point, you will most likely have to hire an attorney and go to court to seek appointment as the conservator of your mom. see more
Question
My dad had a massive stroke and is in a vegetative state. How can my mom get power of attorney if he can't sig...
Your mom will need to be appointed guardian and conservator of your dad. For this, an appearance in court is needed, thus she will need the... Your mom will need to be appointed guardian and conservator of your dad. For this, an appearance in court is needed, thus she will need the assistance of an attorney. There really is no other way for her to get control over his assets and his personal and medical decisions. see more
Question
Both of my parents are on Medicaid and have small life insurance policies. The beneficiary on both policies is...
Life insurance with a face value under $1,500 is not countable for Medicaid. If it is over that amount, then only the cash value is... Life insurance with a face value under $1,500 is not countable for Medicaid. If it is over that amount, then only the cash value is countable. I assume the $10,000 policy must be from their employment years ago.
Normally, I would advise a child in this situation to utilize the $10,000 by spending it down within the month of receipt so it will not cause disqualification. Pre-paying funeral and burial expenses is usually advisable, but in your case they have decided to donate their bodies and thus this is not an option. Ask the nursing home if it possible to purchase anything for the parent's room that might benefit them; that way it is not a penalty-causing gift. The idea is to spend the benefits down in the month of receipt: in the month of receipt it is deemed income, but in the following month it is treated as an asset and must be reported to Medicaid. At that point, your surviving parent will be over-resourced, i.e., have too much money to qualify for Medicaid till the money is spent down again. see more
Normally, I would advise a child in this situation to utilize the $10,000 by spending it down within the month of receipt so it will not cause disqualification. Pre-paying funeral and burial expenses is usually advisable, but in your case they have decided to donate their bodies and thus this is not an option. Ask the nursing home if it possible to purchase anything for the parent's room that might benefit them; that way it is not a penalty-causing gift. The idea is to spend the benefits down in the month of receipt: in the month of receipt it is deemed income, but in the following month it is treated as an asset and must be reported to Medicaid. At that point, your surviving parent will be over-resourced, i.e., have too much money to qualify for Medicaid till the money is spent down again. see more
Question
In Georgia, does a term life insurance policy with no cash value count as an asset for Medicaid eligibility?
(i) only the cash value a policy with face value over $1,500 is countable for Medicaid eligibility purposes, and (ii) unless the... (i) only the cash value a policy with face value over $1,500 is countable for Medicaid eligibility purposes, and (ii) unless the beneficiary of the policy is the estate of the insured, the state cannot go after the proceeds following the death of the insured. see more
Question
Is it legal for a guardian to secretly do a quit claim deed on his brother's home after he goes into a nursing...
The guardian is required by the court that appointed him to file accounts of all the transactions he did. That gives the family (and judge)... The guardian is required by the court that appointed him to file accounts of all the transactions he did. That gives the family (and judge) an opportunity to review the account and file a complaint if something is not right. Thus, the guardian cannot LEGALLY do any transfers secretly. see more
Question
Dad went into a nursing home and Mom got spousal impoverishment, but when she filled out the redetermination f...
After a determination of Medicaid eligibility, the states give a married couple a certain length of time to separate their assets... After a determination of Medicaid eligibility, the states give a married couple a certain length of time to separate their assets (sometimes as long as 12 months). So during this time period, the joint account should have been put in Mom's name. I assume that this did not happen, hence the problem. see more
Question
Can my parent who is in a nursing home give me permission to order medical tests if my sibling has POA?
When person X gives person Y the ability to act on X's behalf (via a POA), that does not remove the power of X to (i) continue to act... When person X gives person Y the ability to act on X's behalf (via a POA), that does not remove the power of X to (i) continue to act on their own behalf, and (ii) name someone else, i.e., person Z. In other words, your parent can name you as POA at any time, so long as your parent is mentally competent at the time. see more
Question
If my dad transfers all of his assets to his children and step-children, can the nursing home ask us for repay...
If your dad transfers large sums of money and has nothing to pay the nursing home, and applies for Medicaid within 60 months of such... If your dad transfers large sums of money and has nothing to pay the nursing home, and applies for Medicaid within 60 months of such transfer, Medicaid will disqualify him for a long time (depending on what state you live in and how much was transferred). During the penalty period the nursing home will want to be paid privately; if your father cannot pay, he will not be admitted. Unlike hospital emergency rooms, nursing homes are not required to take in indigent patients (that's what Medicaid is supposed to be for, the payment to the nursing homes for indigent patients). As a result, your father will be refused admittance to any nursing home; they are not in the business of charity. see more
Question
If my husband has to go to long-term care, can they take the money I had in investments before we married?
If by "they" you mean the nursing home; the answer is "no," but it will want to be paid somehow. However, if you mean... If by "they" you mean the nursing home; the answer is "no," but it will want to be paid somehow. However, if you mean can Medicaid insist on counting your assets even if they were yours before your current marriage, then the answer is "yes." Medicaid rules even ignore pre-nuptial agreements that try to segregate the assets of each spouse by contract.
That said, know that the spouse at home can protect up to $120,900 of their own separate assets. For more about the asset rules, you may want to get a copy of my eBook on this topic, available here: http://medicaidsecrets.com/eBooks.html see more
That said, know that the spouse at home can protect up to $120,900 of their own separate assets. For more about the asset rules, you may want to get a copy of my eBook on this topic, available here: http://medicaidsecrets.com/eBooks.html see more
Question
How do I become POA for my grandmother when she is non-responsive?
At this point, your only option is to petition the probate court to be appointed her guardian and conservator. You will certainly need to... At this point, your only option is to petition the probate court to be appointed her guardian and conservator. You will certainly need to hire an attorney to help you with that. see more
I would like to do some repairs to the house. With Medicaid, does this count as non-essential spending?
After the homeowner is on Medicaid, however, no part of their income can be used to make repairs or improvements to the home. It all must go to the nursing as part of the recipient's "share of costs." see more