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I have been living with my 84 year old mom in her home and taking care of her full time for over three years and have been in and out of her home over the years due to her illnesses, my divorce and loss of my job. I am 60, and am disabled myself. I do not own my own home any longer due to losing my job (mainly because of having to take off of work so much to take her to the doctor). Anyway, she is on Medicaid and as you may already know, during the Clinton Administration, Estate recovery for states was signed into law effectively taking property from heirs no matter how little the property is worth.


I was wondering if there might be any loopholes or exceptions that can help save my mother’s home from being taken from me after she passes away and should I seek an attorney now before I get the dreaded letter in the mail from Medicaid informing me they are about to put me out on the streets.


Also, it is getting harder and harder for me to stay there full time because she has a newly diagnosed personality disorder - a combination of histrionic and borderline. I have a little help taking care of her now so if I move out and get my own little apartment or move in with a friend (for my own sanity), will that be the kiss of death to trying to save her home?


Thanks for any advice anyone can give!



Medicaid doesn’t take houses. They place liens on them that are satisfied if and when the house is sold.

If you’ve lived with your mother full time and taken care of her full time for at least 2 years & it’s properly documented then you probably qualify for the caregiver exemption.
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manilowgirl Jun 1, 2020
I guess I used the wrong terminology. Hopefully I qualify for the caregiver exemption as you stated. Thank you for your reply.
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manilowgirl, so sorry you are going through this.

Please note that Medicaid [different from Medicare] is funded by us taxpayers. If everyone was able to "hide" assets then Medicaid would no longer exist, or if it did our taxes would double to help fund the project.
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mstrbill May 31, 2020
She is not trying to "hide" any assets. It seems to me she is worried about not having a place to live in once her mother passes.
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It was NOT the Clinton Administration. It’s Bush 2005.

MERP aka Medicaid Estate Recovery Program was part of Bush 2005 DRA aka Deficit Recovery Act of 2005. DRA 2005 required all states to have a uniform system for eligibility and recoup / recovery for all sorts of federal/state cost shared programs; done to provide a path to a more balanced budget.... a deficit recovery. Within DRA 2005, there is a section on Medicaid for those receiving benefits over age 55. Due to Bush DRA 2005, if a state wanted to get their federal share of $ for Medicaid, a state had to have placed in their states administrative code eligibility and recoup that falls into overall federal guidelines for Medicaid but done for however your states needed to do compliance within your states laws and administrative code.

Prior to DRA 2005, estate recovery was pretty much nil. The ability to do a recoup has been within the public law that created Medicaid since the 1960’s and thru every PL add on since. The feds didn’t mandate that a recovery be attempted prior to DRA 2005; and most states did very very little recovery. Some did zero.

Medicaid is administered by each state uniquely. The feds do NOT run your states Medicaid system. It is your states legislative that has determined just what MERP can attempt within the recovery process.

Again, Just how MERP will be done is dependent on your state.

For example, there’s about a handful of states that allow for a homeowner to do a “Lady Bird Deed” aka Enhanced Benefit Deed to have their homestead transfer outside of probate and does not affect the elders LTC NH Medicaid eligibility or be subject to MERP. If your state doesn’t do Lady Birds, then you find others concerned abt this and get organized to get this placed as part of your states administrative code.

Another example of how states can deal with compliance is how property values factor in for Medicaid eligibility. States set the $ ceiling is for having a homestead ok as an exempt asset for LTC Medicaid eligibility. Most states have it at 500/550k. But there are eastern seaboard states that have it higher at 750/850k. Elder w/a property bought or inherited in 1960’s that’s now assessed over Medicaid max set by your state will not be eligible for Medicaid. It’s not the feds who do this but your states Medicaid program.

For MERP, how your state attempts recovery will be interdependent on your states laws & administrative code. Whether MERP is a lien or claim depends on your states laws. If your disabled heir, that’s an exemption or exclusion to MERP by & large. But it’s totally on you to clearly find out what documentation is anticipated to be needed to do this type of exemption to MERP after elders death. Ditto for caregiver exemption or any other various exemptions or exclusions to Estate Recovery. It’s on your mom, you or whomever would be heirs to find out how MERP runs for her state and do now what you can to be prepared for it.

It’s on your mom to do a valid will for her states laws to establish who is her heir(s). If not, then when she dies it’s likely to be considered an intestate death and for most states - as far as I’m aware - that means the state determines what happens with the assets of her estate until and unless a lineal Heirship is done in probate court.

MERP is due to Bush era Deficit Reduction Act 2005. Not Clinton.
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manilowgirl Jun 1, 2020
Wow, you really did your research and thanks for all of your helpful information.
I did not randomly mention the Clinton Administration. I read that information in an article from The Atlantic (which you can research online), that states the Clinton Administration signed MERP into law, so I guess one of us is misinformed. But truly it really doesn’t matter WHICH Administration signed MERP into law. The fact is, and all I am saying, is that it causes a lot of hardship for the people who are facing a lien being put on property that they rely on for shelter so it can be sold to pay their state Medicaide Agency back for funds that were paid for their relative’s care. Based on the article I read, it has been proven that Medicaid only recoups about 13% of their spent funds even with this estate recovery process in place and just perpetuates multi-generational poverty for the state’s citizens.

It was signed into federal law but I understand that each state oversees the collection of the funds. And whether it’s the federal government or the states that enforce this MERP doesn’t matter either.
My only concern is where I’m going to live when my mother passes away, which hopefully won’t be anytime soon. It looks like I’ve got my work cut out for me and I better get busy finding out my state’s laws and what I need to do to prepare.

Again, I’m very appreciative for your response and information as I really don’t know anything about MERP other than what I read online in that article so your information was very helpful.

Thanks
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Thanks to igloo for that thorough explanation on MERP. I did learn a few things from your post and I appreciate it. I've met a lot of people who do not understand MERP and all of them should use that post as a starting point. Thanks again. I have had people tell me MERP doesn't really exist or that it has nothing to do with the elder's house. The house is always looked at, but whether it needs to be sold or when it needs to be sold is the real question. Medicaid does not literally "take it" as many people will say. There are also people who believe they can beat MERP by hiding money/assets or whatever and they have all kinds of theories on what a shame it is that the person's life work "went to the nursing home" and ways they think they can get around it. I had a family member call me at the last minute when I was helping with a sale for elder who went to a nursing home. Caller asked me what will happen to the house proceeds and what I was doing to protect the money (i.e. protect it for him to inherit one day). I told him all rules are being followed and house proceeds are going for elder's care. He rarely calls anymore!
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manilowgirl Jun 1, 2020
Well I am not trying to beat MERP by hiding money nor assets. I am simply asking if there are any legal exceptions to the rule so I can prepare for my future in case a “lien“ IS put on my mom’s home, (which means it will be “taken” from me regardless of the terminology. But thank you for your input.
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Manilow, something to keep in mind should your mom continue to own her home, keep it as an exempt asset and go onto LTC NH Medicaid.... due to Medicaids required copay, basically all of her monthly income, less a small personal needs allowance, must be paid to NH each month.

Mom will have ziltch, zip, nada of $ to pay a penny on the house.

So all property costs - taxes, insurance, utilities, repairs - has to get paid by you or other family. If there still is a mortgage, this could be quite a tidy sum. So look at last 2 years of expenses.... can you afford all house costs AND your own living expenses? And be able to do this for an unknown period of time.... could be 5 months or 5 years..... Assume it will take a year or so after death to deal with this too.

Unless your state has it so the caregiver exemption goes in tandem with her Medicaid application, it’s going to be after death paperwork. If right now it’s that moms SS$ is what’s needed to keep the household afloat, then the $ is really not there for you to pay property costs on your own. You imo have to rethink how to manage in home care for her.

If a parent wants to keep thier home, Medicaid allows that by & large. But family / heirs need to have the wallet or purse to afford all house costs, plus a pretty good sense of humor on what old houses mean, and be ok on keeping details on property for future MERP and be comfortable with risk that exemption & estate recovery may not be quite as easy as you’d hoped for. You really must to be pretty solid on your affordability on house costs. You don’t want to find that you cannot pay property taxes as nasty delinquency interest and can go up for tax sale.

If there are siblings or other heirs, what seems to happen is everybody all gung-ho that govtmt not taking maws house for maybe 6 mos. then big brother doesn’t cut the yard anymore, Sissy put off paying taxes, tree falls down & nobody wants to deal with it, etc. The one that’s dpoa or living in the house ends up paying. But each heir will have to deal with thier own exclusion / exemption to MERP or if no Medicaid involved all heirs will want thier share of house sale $. Really if property is kept, you & your family have to imho be able to be all-in for the long haul for both time & $$$.
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You will need to check this info out with ur state Medicaid. Even with caregiving you as her daughter and disabled should be able to stay in her house. You may have to prove you can pay the bills and upkeep. When I received lean paperwork from Medicaid after Moms death, there was a question that if a person was living in the house and was related and was their main residence they could remain in the house but a lean would be placed. At the time of that person's death, they sell or leave the house, the lean will need to be satisfied.
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Yes, get an elder law attorney now. It depends on your state. There are caregiver exemptions on the home if caregiver has provided medically necessary care for a period of two year. In my state that exemption only applies if there is placement to a nursing home. Assisted living and memory care do not meet the requirement. Which I think should be changed to include memory care.
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manilowgirl Jun 1, 2020
Thank you for your reply!
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