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
Does spousal VA Aid and Attendance income affect Medicaid eligibility?
This is from my book, Medicaid Secrets (www.MedicaidSecrets.com): Pension and Medicaid. Note that the “aid and attendance allowance” or... This is from my book, Medicaid Secrets (www.MedicaidSecrets.com):
Pension and Medicaid. Note that the “aid and attendance allowance” or “housebound allowance” portion of a Pension payment does not count as “income” for Medicaid purposes. This could be important should the veteran or spouse ever need to apply for Medicaid. Also note that while a VA pension recipient is not required to apply for Medicaid, a Medicaid applicant must apply for all benefits to which he or she may be entitled before Medicaid payments will be made to reimburse a facility. So a Medicaid applicant must determine if he or she may be entitled to VA Pension and if so, is required to apply for it.
If a VA Pension or Death Pension recipient, with no spouse or child, is a patient in a nursing home and has qualified for Medicaid coverage, then the Pension or Death Pension amount cannot exceed $90 per month, after the end of the third full calendar month following the month of admission to a VA-run (VHA) nursing home or starting with eligibility for Medicaid in a private nursing home (after the month of admission). Note that veterans residing in state-run veterans’ homes are exempt from this $90-per-month limit. Such $90/month payment is not considered income and does not have to be paid to the nursing home, and it is paid in addition to the personal needs allowance. see more
Pension and Medicaid. Note that the “aid and attendance allowance” or “housebound allowance” portion of a Pension payment does not count as “income” for Medicaid purposes. This could be important should the veteran or spouse ever need to apply for Medicaid. Also note that while a VA pension recipient is not required to apply for Medicaid, a Medicaid applicant must apply for all benefits to which he or she may be entitled before Medicaid payments will be made to reimburse a facility. So a Medicaid applicant must determine if he or she may be entitled to VA Pension and if so, is required to apply for it.
If a VA Pension or Death Pension recipient, with no spouse or child, is a patient in a nursing home and has qualified for Medicaid coverage, then the Pension or Death Pension amount cannot exceed $90 per month, after the end of the third full calendar month following the month of admission to a VA-run (VHA) nursing home or starting with eligibility for Medicaid in a private nursing home (after the month of admission). Note that veterans residing in state-run veterans’ homes are exempt from this $90-per-month limit. Such $90/month payment is not considered income and does not have to be paid to the nursing home, and it is paid in addition to the personal needs allowance. see more
Question
Will I be able to will money to my daughter and have her apply for Medicaid for my husband's care?
While you can certainly create a will that leaves all your property to your daughter, omitting your husband entirely, there is a law in... While you can certainly create a will that leaves all your property to your daughter, omitting your husband entirely, there is a law in every state that gives a surviving spouse a right to a certain percentage (typically 1/3 to 1/2, depending on the state) of the first-to-die spouse's estate. Medicaid will treat the amount that you did NOT leave your husband as a gift from him to your daughter, causing a period of disqualification from Medicaid for a certain number of months.
Thus, as you can see, it is quite complicated. What the best solution is depends heavily on state law. You may be able to minimize the amount you leave for your husband by using a trust inside your will. Clearly you should consult local legal assistance from an experienced attorney in this area of practice. Good luck! see more
Thus, as you can see, it is quite complicated. What the best solution is depends heavily on state law. You may be able to minimize the amount you leave for your husband by using a trust inside your will. Clearly you should consult local legal assistance from an experienced attorney in this area of practice. Good luck! see more
Question
The bank will not acknowledge my POA. What can I do?
Well, that is unfortunate that the bank wants the person signing the document to then sign ANOTHER document saying that yes, I really did... Well, that is unfortunate that the bank wants the person signing the document to then sign ANOTHER document saying that yes, I really did sign the first document. And will they want a third one proving the person actually signed the second document? As you can see, this is ridiculous. If the durable power of attorney was signed and notarized, that gives added proof that the signature was valid. A bank cannot be sued for relying on validly signed POA.
That's all well and good, but if indeed a bank refuses, what can you do? I have been at meetings with other attorneys who say "I advise my clients never to use Bank X because they always cause trouble with POAs," etc. But the average person has no idea of a bank's reputation in this regard and is thus at their mercy when the time comes to try to use a correctly prepared and signed POA.
Short of filing an expensive legal proceeding against the bank to force them to recognize the POA (precisely what you were trying to avoid in the first place by using a POA), you can have the attorney who prepared the document call the legal department and try to persuade them to accept it. Or say that YOU will sign a hold harmless provision that protects the bank if they act in reliance on the POA.
Good luck! see more
That's all well and good, but if indeed a bank refuses, what can you do? I have been at meetings with other attorneys who say "I advise my clients never to use Bank X because they always cause trouble with POAs," etc. But the average person has no idea of a bank's reputation in this regard and is thus at their mercy when the time comes to try to use a correctly prepared and signed POA.
Short of filing an expensive legal proceeding against the bank to force them to recognize the POA (precisely what you were trying to avoid in the first place by using a POA), you can have the attorney who prepared the document call the legal department and try to persuade them to accept it. Or say that YOU will sign a hold harmless provision that protects the bank if they act in reliance on the POA.
Good luck! see more
Question
Does new POA override old DPOA powers?
You can certainly have multiple powers of attorney, although it may not be a good idea! It's best to revoke prior powers of attorney... You can certainly have multiple powers of attorney, although it may not be a good idea! It's best to revoke prior powers of attorney when a new one is signed. This is why many banks will not recognize a power of attorney that is more than a few years old: for all they know it has been revoked, replaced, etc.
Some states require registration of a power of attorney, some not. You need to check.
DPOA means "durable power of attorney." "Durable" means that the authority given to the agent in the POA continues to be effective even after the incapacity of the "principal" (i.e., the person who signed the document and is giving powers to someone else: to the "agent"). see more
Some states require registration of a power of attorney, some not. You need to check.
DPOA means "durable power of attorney." "Durable" means that the authority given to the agent in the POA continues to be effective even after the incapacity of the "principal" (i.e., the person who signed the document and is giving powers to someone else: to the "agent"). see more
Question
How long does it usually take for SSA to determine Medicaid eligibility for a NH patient?
The federal statute requires the determination of eligibility be completed within 45 days, but as you can see below, the various states... The federal statute requires the determination of eligibility be completed within 45 days, but as you can see below, the various states frequently miss this deadline. see more
Question
Can I gain guardianship over my Mother if I am named only as successor on her POA?
In order to be appointed guardian, there will have to be a court hearing. You will need an attorney to present your case, that you--and not... In order to be appointed guardian, there will have to be a court hearing. You will need an attorney to present your case, that you--and not your brother--should be named as your mother's guardian. If he opposed your appointment, he will need an attorney also, to plead his case why. Ultimately, it will be up to the judge to decide who should be appointed as your mother's guardian. (The fact that your mother named your brother as primary and you as secondary agents in her POA is some evidence, but not the final word. You will have to give good reasons to the court why you should be appointed and not him.) see more
Question
What expenses qualify to be used in the Miller's trust?
The link to Indiana rules on Miller Trusts, below, is very helpful. For others not in IN, please note that the rules do vary slightly from... The link to Indiana rules on Miller Trusts, below, is very helpful. For others not in IN, please note that the rules do vary slightly from state to state, so be sure to find out the specific rules for your own state before taking any action. see more
Question
I bought my Mom's house 25 years ago with a lifetime estate for her. Sold it this year. Will this keep her fro...
Your mom is entitled to a PORTION of the net proceeds, and that amount must be spent on her care or otherwise used for her benefit... Your mom is entitled to a PORTION of the net proceeds, and that amount must be spent on her care or otherwise used for her benefit (pre-paid funeral/burial, etc.). There is a table that is used by Medicaid that shows what percentage she is entitled to upon a sale, corresponding to her age on the date of the sale. The older she is, the smaller the percentage (since her life estate--which terminates at her death--decreases in value every year). I include that table in the appendix of my book, Medicaid Secrets (www.MedicaidSecrets.com) and also discuss life estates in detail. see more
Question
Can spend down be used on in-law's house even though they are both in a care home?
Yes, you can use their money for repairs and even improvements on the home, but as pointed out below, the home with all the repairs and... Yes, you can use their money for repairs and even improvements on the home, but as pointed out below, the home with all the repairs and improvements may have to be sold following the death of the survivor of your in-laws to repay the state for its Medicaid outlays on behalf of your in-laws. see more
Question
When my aunt died the refund check was paid in her name. The bank won't accept the check. Any advice?
I represented the heirs of a person who died before receiving a large settlement check. Again, it was made out to the deceased. We had to... I represented the heirs of a person who died before receiving a large settlement check. Again, it was made out to the deceased. We had to open a probate case just to get the check cashed. As mentioned by others, here, under state law there may be creditors that need to be paid before the estate can be distributed among the heirs (if no will) or beneficiaries (if there IS a will). Most states have a quick and inexpensive version of probate that you can use, hopefully. see more
Question
How do I know which is better for my Mom - spend down or pooled trust fund?
A "Pooled Trust" is a trust managed by a local charity that, pursuant to federal law, "pools" all contributions from... A "Pooled Trust" is a trust managed by a local charity that, pursuant to federal law, "pools" all contributions from the various people who contribute to the trust, and in exchange, pays out to the contributors/beneficiaries on an as-needed basis. Upon the death of the contributor, the trust will either retain any unused funds left from the original contribution amount to add to the "pot," or possibly allow distribution out to named individuals (varies by state). Note, however, that some states only allow contributions to a Pooled Trust if the contributor is under age 65.
A spend-down is simply spending any excess assets of the individual whose money it is and who is planning on applying for Medicaid, on things that benefit that individual. As such, should the individual need some of that money later, it will not be there. With the Pooled Trust, that money continues to be available to benefit the individual for the rest of their life.
I have a section of my book that discusses Pooled Trusts in more detail, as well as other trust-planning techniques (www.MedicaidSecrets.com). see more
A spend-down is simply spending any excess assets of the individual whose money it is and who is planning on applying for Medicaid, on things that benefit that individual. As such, should the individual need some of that money later, it will not be there. With the Pooled Trust, that money continues to be available to benefit the individual for the rest of their life.
I have a section of my book that discusses Pooled Trusts in more detail, as well as other trust-planning techniques (www.MedicaidSecrets.com). see more
Question
Want to put Mom in assisted living, but do no not have funds. Any advice?
Medicaid will assist some people in assisted living under the HCBS or Money Follows the Person program, available via your state Medicaid... Medicaid will assist some people in assisted living under the HCBS or Money Follows the Person program, available via your state Medicaid office. I would call them today and find out what forms you need to fill out. You just may be able to get some assistance from them. see more
Question
Should I request a credit card limit reduction for an elder before a Medicaid application is done?
Medicaid does not count the ability to borrow money as an asset. It's only cash in the bank (or other assets) that they will consider.
Question
My brother tricked my Mother into making him POA. Any advice?
Even if the POA was signed with full understanding and consent of your mom, it is doubtful it permits him to change the accounts so they... Even if the POA was signed with full understanding and consent of your mom, it is doubtful it permits him to change the accounts so they pass to him. There is the legal concept of "fiduciary duty" of the agent under a Power of Attorney, as well as state laws that prohibit the agent from using the power to benefit themselves. I would definitely consult with an attorney with elder law experience to assist you in this matter. see more
Question
If veteran is put into nursing home care, does his pension decrease?
You may be thinking of the $90 Pension limit for certain nursing home patients who are on Medicaid. If a VA Pension or Death Pension... You may be thinking of the $90 Pension limit for certain nursing home patients who are on Medicaid. If a VA Pension or Death Pension recipient--with no spouse or child--is a patient in a nursing home and has qualified for Medicaid coverage, then the Pension or Death Pension amount cannot exceed $90 per month, after the end of the third full calendar month following the month of admission to a VA-run (VHA) nursing home or starting with eligibility for Medicaid in a private nursing home (after the month of admission). Veterans residing in State-run veterans’ homes are exempt from this $90-per-month limit. Such $90/month payment is not considered income and does not have to be paid to the nursing home, and it is paid in addition to the personal needs allowance. see more
Question
How does Medicaid look back repayment work?
Indeed Medicaid views the gift as one that must be reported if Grandma applies for Medicaid within 5 years of that gift. If so, there will... Indeed Medicaid views the gift as one that must be reported if Grandma applies for Medicaid within 5 years of that gift. If so, there will be a penalty period equal to the amount of the gift divided by the state "penalty divisor," which varies from state to state, but is roughly equal to the average cost of a shared room in your state's nursing homes.
So as you can see, only the "lookback period" of 5 years applies to gifts, not "estate recovery,'' which is when the state wants to be repaid after a Medicaid recipient's death. see more
So as you can see, only the "lookback period" of 5 years applies to gifts, not "estate recovery,'' which is when the state wants to be repaid after a Medicaid recipient's death. see more
Question
When should I expect Medicaid to contact me about Estate Recovery?
As for whether a state has a limited time to make a claim for recoupment/reimbursement of Medicaid payments, the answer is: it depends on... As for whether a state has a limited time to make a claim for recoupment/reimbursement of Medicaid payments, the answer is: it depends on the state. Some states subject estate recovery claims to the same statute of limitations as other claims, i.e., 1 year, or whatever the statute says. Other states grant an exception to claims by the state government to the normal statute of limitations law, leaving you hanging there for years, unfortunately. see more
Question
Mom has $5000 life insurance policy, can she irrevocably assign it to a funeral home and qualify for Medicaid?
Under the Medicaid rules, any amount of life insurance earmarked for burial expenses of the applicant or spouse, if any, where the proceeds... Under the Medicaid rules, any amount of life insurance earmarked for burial expenses of the applicant or spouse, if any, where the proceeds can only be used for burial expenses, is an excluded asset. see more
Question
Is a durable POA as good as a Revocable Living Trust?
GardenArtist is correct. I have drafted hundreds of DPOAs as well as revocable living trusts, and both are needed in many cases. But to... GardenArtist is correct. I have drafted hundreds of DPOAs as well as revocable living trusts, and both are needed in many cases. But to avoid probate, there can be no assets titled in your sole name. Accounts that pass on death automatically, such as joint bank accounts or brokerage accounts with a POD designation, also avoid probate and are sometimes all that is needed. see more
Does spousal VA Aid and Attendance income affect Medicaid eligibility?
http://www.veteransaidbenefit.org/aid_and_attendance_pay_nursing_home.htm see more