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
Do you need to file a Will for probate in the state of Florida if everything is in joint accounts and left to...
Probate is only needed if there are some assets titled in the sole name of the deceased individual. If everything is jointly titled with... Probate is only needed if there are some assets titled in the sole name of the deceased individual. If everything is jointly titled with right of survivorship, then it is not needed. A joint bank account would always pass to the surviving joint owner, so you are ok if that's the case. see more
Question
Can my Mom spend down some of my Dad's half to fix items for her home?
Yes, as other correctly stated, it is not a "gift" to spend down the Medicaid applicant's funds on themselves, e.g., repairs... Yes, as other correctly stated, it is not a "gift" to spend down the Medicaid applicant's funds on themselves, e.g., repairs or upgrades to the home. However, don't forget that the spouse at home is entitled to $119,220 of cash and other countable assets (in other words, in addition to the value of the home, car, personal property, etc.). see more
Question
We are trying to get our grandmother qualified for Medicaid. Advice?
If the three of you owned the home equally, then I agree that when the proceeds were transferred to a joint bank account, you each were... If the three of you owned the home equally, then I agree that when the proceeds were transferred to a joint bank account, you each were entitled to one-third of the money in the account. see more
Question
My grandfather bought me a home in 2011 and in 2013 his name was taken off and my name remained. Advice?
When your grandfather put your name on the deed in 2011 he made a gift to you of 50% of the then value of the house (because you owned it... When your grandfather put your name on the deed in 2011 he made a gift to you of 50% of the then value of the house (because you owned it jointly). When his name came off the deed, he made a gift to you of 50% of the 2013 value of the home. So you have two different 5-year lookback periods to contend with. The farthest-out date would thus be in 2018; if his money runs out in 2017, he will have to pay privately for that one-year period. It is important that he NOT APPLY for Medicaid until the second 5-year lookback period expires, otherwise his penalty could be for many, many months (based on the value of the 2013 gift). That period would surely be longer than the one year he will have to wait to get to 2018. Perhaps you can use the proceeds of the house sale--or the mortgage on the replacement house--to cover him for that one-year period. see more
Question
Can I set up some sort of trust that would enable my brother to get into an assisted living situation?
You could transfer some of the assets your parents left you into a Special Needs/Supplemental Needs Trust for the benefit of your brother.... You could transfer some of the assets your parents left you into a Special Needs/Supplemental Needs Trust for the benefit of your brother. Such a trust could help secure your brother's entry into an assisted living facility without disqualifying him from Medicaid. That's because the trust would not be REQUIRED to pay anything to or for his benefit (assuming it is drafted correctly). As for being over age 65, that would not be an issue here; that rule only applies if a person is setting up a trust for their own benefit. see more
Question
My Mom is a beneficiary to a life insurance policy. How can she avoid this affecting her community Medicaid?
If your mother "disclaims" (refuses) the proceeds of the insurance, the Medicaid department of your state will treat it as if she... If your mother "disclaims" (refuses) the proceeds of the insurance, the Medicaid department of your state will treat it as if she received the money and gifted it to the person or persons next in line according to the policy's beneficiary designation. Such a gift would cause your mother to lose her Medicaid for a certain number of months.
Thus, it would be better for her to accept the money and immediately convert it to something not countable, e.g., a Medicaid annuity, prepaid funeral and burial, household items, new car, etc. I give a lot of these suggestions in my Medicaid Secrets book (by the way, the 2015 edition is just out. www.MedicaidSecrets.com). see more
Thus, it would be better for her to accept the money and immediately convert it to something not countable, e.g., a Medicaid annuity, prepaid funeral and burial, household items, new car, etc. I give a lot of these suggestions in my Medicaid Secrets book (by the way, the 2015 edition is just out. www.MedicaidSecrets.com). see more
Question
Does anyone know if the book "Medicaid Secrets" by K. Gabriel Heiser accurate for Louisiana?
Igloo is quite correct, that the various states take different positions on many issues, although the overall scheme of Medicaid is federal... Igloo is quite correct, that the various states take different positions on many issues, although the overall scheme of Medicaid is federal law, so a basic understanding of what that law is would be important regardless of your state.
As to Louisiana, you may wish to go here: http://dhh.louisiana.gov/index.cfm/faq/category/24 see more
As to Louisiana, you may wish to go here: http://dhh.louisiana.gov/index.cfm/faq/category/24 see more
Question
What is the criteria for qualifying for Medicaid?
While there are some variations from state to state, the basic qualifications for Medicaid are determined under federal law. The most basic... While there are some variations from state to state, the basic qualifications for Medicaid are determined under federal law. The most basic rule is that the person applying for Medicaid cannot have more than $2,000 in countable assets. This excludes the home, car, personal items, furniture, etc. There is also an income limit, but that is almost never an issue.
Because of the complications, you may wish to educate yourself not just on the rules, but on how you can plan to qualify for Medicaid so you do not waste your money through mistakes. That is exactly the reason I wrote my book How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). The brand-new 2015 edition should be available in a few days. Good luck with everything! see more
Because of the complications, you may wish to educate yourself not just on the rules, but on how you can plan to qualify for Medicaid so you do not waste your money through mistakes. That is exactly the reason I wrote my book How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). The brand-new 2015 edition should be available in a few days. Good luck with everything! see more
Question
Medicaid will not allow me to keep enough money to pay my medical bills after insurance. Why?
Your husband's medical bills should all be paid by Medicare or Medicaid. However, your own medical bills must be paid by you out of... Your husband's medical bills should all be paid by Medicare or Medicaid. However, your own medical bills must be paid by you out of your own income or assets. You are allowed to keep 100% of your own income, and if your income is below the federal minimum of $1,966, you can petition the state to obtain a portion of your husband's income. Indeed, if you have greater need than even this, you can petition the state to receive ALL of his income, up to a maximum necessary to bring your combined total to $2,981. see more
Question
If Mom's house is in a Medicaid trust and needs repairs, am I allowed to pay for those repairs with her income...
I am not clear on how this was all set up. If she transferred the house into an irrevocable trust, and that was counted as a transfer... I am not clear on how this was all set up. If she transferred the house into an irrevocable trust, and that was counted as a transfer subject to a penalty period if she applied for Medicaid within the next 5 years, then in that case any additional money she spends on the house at this point would be another gift, triggering a new 5-year lookback period for the amount of those additional payments. On the other hand, if family members paid house expenses/repairs out of their own pockets, that would not cause any Medicaid-related problems to your mother, since the trust now owns the house. see more
Question
How can I stop my Mom's Will from going intestate?
Without a signed original, or even a copy of a signed original, there essentially is no will. As such, her estate will be administered... Without a signed original, or even a copy of a signed original, there essentially is no will. As such, her estate will be administered under your state's intestacy statute. see more
Question
How to cancel a Will?
Destroying the original will certainly is possible, but as mentioned below, someone may try to probate an existing copy. So it's best... Destroying the original will certainly is possible, but as mentioned below, someone may try to probate an existing copy. So it's best to either destroy all copies (but do you really know where they all are?) or have the individual sign a codicil to that will indicating they wish their property not to pass as set forth in their will dated such and such, but instead to pass as if they had no will, per the intestacy statute of such-and-such state (presumably the state of residence). Indeed an attorney should supervise the preparation and execution of the codicil. see more
Question
Can sell my car for funeral policy etc. before I resubmit for Medicare?
Yes, you can sell the car and put the proceeds into a funeral/burial policy, but the car is an exempt asset regardless of its value, so I... Yes, you can sell the car and put the proceeds into a funeral/burial policy, but the car is an exempt asset regardless of its value, so I don't see the reason for doing that. You'd be exchanging one exempt asset for another, and then you'd have no car. see more
Question
How do I get POA Healthcare for my sister who has a mental illness and has been in a psychiatric hospital for...
If she is competent to understand the nature of the POA, and an attorney can be convinced of that at the time of the signing, then an... If she is competent to understand the nature of the POA, and an attorney can be convinced of that at the time of the signing, then an attorney can prepare the health care POA and supervise the signing. see more
Question
Who is responsible for bills when parents die?
Under the federal Medicaid statute, the state can only recover for past outlays on behalf of the decedent out of the decedent's... Under the federal Medicaid statute, the state can only recover for past outlays on behalf of the decedent out of the decedent's "estate." 42 U.S.C. 1396p(b)(4)(A).
All states must seek recovery at least from the “probate estate” of the Medicaid recipient, as defined by the relevant state law. In addition, a state may expand its definition of “estate” to include virtually any asset in which the deceased nursing home resident had any legal interest the moment before death. Thus, it appears that a state cannot recover against children under filial responsibility laws. see more
All states must seek recovery at least from the “probate estate” of the Medicaid recipient, as defined by the relevant state law. In addition, a state may expand its definition of “estate” to include virtually any asset in which the deceased nursing home resident had any legal interest the moment before death. Thus, it appears that a state cannot recover against children under filial responsibility laws. see more
Question
I have POA for my Mom, but banks are not accepting my legal forms. Any advice?
Unfortunately, there are frequently problems with certain banks recognizing the validity of a Durable Power of Attorney. On the private... Unfortunately, there are frequently problems with certain banks recognizing the validity of a Durable Power of Attorney. On the private email listserv subscribed to by elder law attorneys across the U.S. there were often pleas of exasperation from attorneys trying to get their DPOA recognized by certain banks, and other attorneys saying they avoid such and such bank for that reason but have never had trouble with so and so bank.
Since the policies of the various banks may change over time, I cannot give specific names, but simply wanted to point out that there may not be anything missing from your document, it may simply be a troublesome bank.
My suggestion is to have the attorney who drafted the document call over to an executive at that bank branch to throw a little weight around. If you cannot use that attorney for some reason, it may be cost effective to pay a different attorney to make the call; certainly it would be cheaper and less invasive to family privacy than going through the court procedure of obtaining a guardianship or conservatorship. see more
Since the policies of the various banks may change over time, I cannot give specific names, but simply wanted to point out that there may not be anything missing from your document, it may simply be a troublesome bank.
My suggestion is to have the attorney who drafted the document call over to an executive at that bank branch to throw a little weight around. If you cannot use that attorney for some reason, it may be cost effective to pay a different attorney to make the call; certainly it would be cheaper and less invasive to family privacy than going through the court procedure of obtaining a guardianship or conservatorship. see more
Question
Mom and Dad had a trust to avoid probate. Do we need to hire a lawyer?
Having a trust that is FUNDED can really save a lot of legal expenses and hassle upon the death of the grantor (person who created the... Having a trust that is FUNDED can really save a lot of legal expenses and hassle upon the death of the grantor (person who created the trust). However, as others have mentioned, there are often at least some assets that were not titled in the name of the trust at the time of the grantor's death.
Even if everything was indeed titled in the name of the trust, the complex legal language of a trust can be difficult for a layperson to understand, so having an attorney who specializes in wills and trusts (estate planning) read through the document and explain to you what needs to be done will most likely be necessary for all but the very simplest of trusts. see more
Even if everything was indeed titled in the name of the trust, the complex legal language of a trust can be difficult for a layperson to understand, so having an attorney who specializes in wills and trusts (estate planning) read through the document and explain to you what needs to be done will most likely be necessary for all but the very simplest of trusts. see more
Question
Anyone have experience with a revocable trust that has been set up by an elder care attorney?
One additional point to consider: A special needs trust set up with the assets of the first spouse to die will only be exempted by Medicaid... One additional point to consider: A special needs trust set up with the assets of the first spouse to die will only be exempted by Medicaid if it is inside a WILL, not a revocable trust. This is a quirk in the federal law that makes little sense, but nonetheless is true!
However, as others have pointed out, if Medicaid is not ever going to be an issue, then having the special needs trust inside a living/revocable trust of the first spouse to die, for the benefit of the surviving spouse, is a standard planning device.
I've drafted hundreds of wills, revocable, and irrevocable trusts over the years and include a very detailed discussion of what trusts to use and how to use them, in my book How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). You may find the trust chapter helpful. see more
However, as others have pointed out, if Medicaid is not ever going to be an issue, then having the special needs trust inside a living/revocable trust of the first spouse to die, for the benefit of the surviving spouse, is a standard planning device.
I've drafted hundreds of wills, revocable, and irrevocable trusts over the years and include a very detailed discussion of what trusts to use and how to use them, in my book How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). You may find the trust chapter helpful. see more
Question
What is the maximum dollar amount Medicaid allows for household expenses during the Medicaid spend down?
During the spend down period, so long as the money is spent for the benefit of the prospective Medicaid patient, there is no dollar limit.... During the spend down period, so long as the money is spent for the benefit of the prospective Medicaid patient, there is no dollar limit. So if the patient is living in the home, then any expense related to taking care of the patient or the house is allowed as a deduction. see more
What are valid expenses that reduce income to avoid exceeding the Medicaid income limit?
Other states allow the applicant to set up a Qualified Income Trust (also known as a Miller Trust) to hold the income. The income is paid into the trust and the trustee pays it over to the nursing home, and Medicaid pays the difference between the income and the nursing home cost.
In short, it is virtually impossible to have too much income regardless of the state you are in, unless the income is so high that it exceeds the actual cost of the nursing home. see more