How can we prove that money gifted by my father last year before needing to placed long term wasn't being hidden for the 5 year look back?

You can’t protect a gift From the Medicaid 5 year look back. Even a lawyer can’t help you at this point. Either return the $40k or pay for his LTC costs until the penalty period is up. Medicaid doesn’t care about any plan or what he intended to do with the money. Any money he has is to be used on his care and Medicaid will then pick up the tab when he’s spent down his assets. The time to protect his assets has come & gone if he needs Medicaid now.

You and the others can return the money to your father for him to spend down if there is anything left when dies it can be redistributed. Medicaid is possibly the most well run arm of our government, they don't care why the money was distributed.

I would visit your attorney for a better understanding of Medicaid. I believe that this is a fight that you will not win.

As another poster put it "it is not about intent, but about what actually happened."  It is fair and reasonable that all his money be used for his care before the taxpayer has to step in with Medicaid.

Sounds like there is noting that can be done.
The property, owned by your father was sold in 2012.
He gave you $40,000 of that. That was a gift to you.
You can return the $40,000
Or
it will delay the process.
If the property sold for "only" $40,000 that is all that you have to be concerned about. If it sold for more either the rest should be returned as well or the rest is also added to the total to further delay the process.
Might be a time to consult an Elder Care Attorney. It is possible that if the money is placed in an irrevocable trust that might change the delay or the process.

Well, I can see I'm regretting looking for some answers here! I wasn't looking to argue rules, I was looking to see if I understood them correctly. I can understand that if you go in a facility and then try to start moving money to hide it, that would not be right. I was trying to find out if I was misinterpreting the rule for money distributed during regular uneventful years and then all of the sudden find yourself going into a LTF. He just went into the facility yesterday and has PLANNED well enough to self pay for about 3 1/2 years. That's 42 months at $9,000 per month. After that, he will need Medicaid, but if they go back 5 years, that goes back into healthy years. The property wasn't part of his long term plan, he only acquired that 8 years ago from my cousin's estate and he said that he wanted to just sell it and divide the money among the 4 children. By the time the property sold and he gave the money it will still fall within the 5 years from when he will be needing Medicaid 3 1/2 years from now. I'm trying to find out if money dispersed is a cut and dried thing or do they investigate to see if someone is actually trying to hide money.

Jwlyda, it is confusing as can be. I am with you trying to figure out how do you know what tomorrow holds and how do you prepare for the unknown.

Does the 3.5 years of self pay include his house? If not, you can look into selling that to cover self pay until the penalty period ends. Medicaid is going to get paid back as much as they can, they will put a lien on the house and collect when it is sold after his death. They won't make accusations, they will just place a penalty period in place for the money that was gifted to his children. It's really not about intent, it is about actions.

I would honestly not worry at this point, because they are always changing the rules, so who knows what the situation will look like in 3 years.

I dealt with a situation that my dad made 14.00 a month to much to qualify for public assistance. Yet he was thousands of dollars shy of skilled care. I found a board and care home that would let him age in place and he could afford the monthly payment. He didn't plan for his old age or any medical conditions, every penny went to keep his teeny bopper wife happy and when he got sick she left. Ugh!

So your dad is okay for now, worry about later, later.

@jwlyda, are there other, less expensive care facilities in his area that would meet your dad's needs? Have y'all shopped around for a place that could help his money last longer?

jwlyda - I’ve seen it asked a few times but not answered - where do your siblings stand in all of this? Did they take their intended share of the money that was generated through the land sale?

An interesting side note -
well, I think it’s interesting...

A study recently done by The World
Health Organization ranked 195 countries in the health care that is available to their citizens. America ranked 35th. Pretty pathetic for “The Most Powerful County in the World”. At least, that’s my opinion.

Again, "it is not about intent, but about what actually happened."

If Medicaid qualification were loosened as you would like, we would all be paying much higher taxes to allow that many more people to live in NHs with publicly funded support.

What about the shares for your siblings? What's happened to their (total) $120,000?

Not intent, but actually what happened.

Check this website, they actually have attorneys online that may be able to help you with your question. Better them than those of us that think we understand how the look back works. Maybe they will tell you what you want to hear, or ways to fix it.

https://www.nolo.com/legal-encyclopedia/how-can-i-safely-transfer-my-assets-get-medicaid-pay-long-term-care.html