Can my mother give me her house after she is in a nursing home and the Medicaid application has been filed? -

Can my mother give me her house after she is in a nursing home and the Medicaid application has been filed?


My mother just went into a nursing home. If I have been helping pay her bills for the last 3 years at $1,500 per month, can she give her house to me in exchange for me forgiving the financial assistance, based on it being looked at as a loan? Will this work in regard to Medicaid eligibility in Nebraska? Can this be done now, after she is in the nursing home, and the Medicaid application has been filed? We did do a quit claim deed a few months ago, where she, me, my wife, and my brother are joint tenants on the house.

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We just went thru this getting my mother into a Medicaid program. We used a family law firm that specializes in Medicaid filings. They made sure everything was done legally, including mother signing over the family land to my brother and me. They actually did the filing for us and know exactly what is required and what questions have to be answered to get it to go through. The documentation I had to provide was overwhelming since my mother has Alzheimer's and her bookkeeping skills was never stellar to begin with. I learned that if I found a file labeled Misc or Paid Bills, this was a treasure trove of info. I found life insurance policies we didn't know she had and these must be either cashed in or have the ownership changed. I was unable to take over the payments so these had to be cancelled. I also found one that was defrauding her. They said she had "aged" out on the life insurance 3 years before but they had continued to bill her and collect the premiums. Insurance policies are considered to be part of her estate and she is only allowed to have so much before they disallow her Medicaid claim. We would never have been able to Wade through all if the red tape without help. By the way, the reason we had to put mother into a Medicaid program was because she had a long term care policy (since 1996) that refused to pay off on her claim.
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No gifting is allowed as far as Medicaid's rules.
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Lawyer Up! What is said isn't carved in stone.
It may not be her house to give when the time comes.

You need an attorney.
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My experience with this is "consult an elder care attorney." This is an admissible fee that can be paid by your parent, though if you are already paying that much money in support, she may not have it. The $400 consultation that I had was a lifesaver.
Check into if you or any of your siblings are considered "disabled," then you might be able to transfer the house that way. Also look at BUYING an interest in your mom's house to add your name, rather than simply adding your name (as that becomes a gift). IF your state is NOT an expanded Medicaid garnishment state, your buying an interest in the house would keep it out of probate after your parent's passing, and thus unavailable for estate garnishment. Of course, you will be paying a capital gains on the percentage that you purchased at some point. As things stand right now, it sounds to me that you are going to be looking at a penalty with Medicaid, and, as others have pointed out, will either be paying out of pocket for a certain number of days or transferring the house back.
Any care or financial assistance that you have provided without a caregiver contract, rental agreement, promissory note, or other legally executed document is just gone. We have a caregiver contract with my mother. She was able to pay for care for awhile, but now there is no way she can pay full value of the care we provide (and our rate is cheaper than a facility or agency!), but I have a document and careful records, and if I have to after her passing I will put a lien against her probate estate.
Best advice is to consult an elder care attorney.
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Please ignore my response above - I was replying to another post and made an error. My apologies.
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Dave, to me there's 3 intertwined issues: your $, what a QCD is/does & medicaid.

Heres my thoughts... Will be long so get a cup of coffee or adult beverage..... First  $ you paid for things "mom", for it to be viewed as some sort of "loan", it would need an agreement, memo of understanding or Promissory Note between mom & you with details as to what costs are to be repaid / reinbursed and from what asset (of your moms that is totally hers) is to be used to repay the loan (like from her annuity payment, or the sale of her home or stocks). Whatever document needs to be in some sort of legal or structured format for "loans" and notarized with witnesses and done before funding. Doing after the fact just won't work legally is my understanding. Moms transferring $ to you now looks like gifting. Gifting triggers a transfer penalty inquiry by Medicaid. It will show up and to the penny as Medicaid can require up to 5 full years of financial & asset documents. As mom has just applied for Medicaid, her asset review date is fixed as of date of application so anything done between now and March, 2012 is within look-back review.

Any promissory note or personal care contract would have had to be in place way way before now. Too late IMO. Medicaid tends to view whatever kids pay for as done for free & out of a sense of familial duty with no pay-back unless there is a notarized document done before payments made. 

The QCD....Now doing a QCD (quit claim deed) is often done on the fly by families as it appears to be a simple and easy way to change property ownership. QCDs can work but often they pose all sorts of issues as there is NO guarantee of ownership with property transferred via QCD. It is only a Warranty Deed that provides for full guarantee of ownership. Mortgage co are skittish on QCD and may require title work & WD to underwrite a sale. QCD transfers what the owners thinks is their property, without any title search for liens, claims or other clouds on the property. By the latter, "clouds" usually happens with property handed down generationally, with it never going through probate, name legally transferred or recorded at courthouse. It remains in grandpas name even with a QCD. So if any of the possible heirs to the property, themselves have liens or judgements, those can be placed onto the property. The liens won't show up in the QCD. But are there. When eventually property goes to be sold OR used as collateral OR get a loan, grant.... clouds will surface. As an aside on this, if any of those family members who are now newly "owners" via the QCD have themselves leins or judgements, they can be placed upon property.

QCDs in some states to be valid require that they must be recorded at the courthouse. You need to find out if for NE this is required.

For Medicaid, QCDs pose a transfer penalty. Say mom owed her 200k property (value based on her last tax assessor bill unless mom had an appraisal done before QCD that takes it lower than assessor value) 100% and through the QCD transferred to others in the family so that mom now owns 20% and the 4 kids each own 20%, that means she has transferred $160,000 to the kids. 160k transfer penalty in which although mom qualifies for Medicaid, she is ineligible for Medicaid to pay until the transfer penalty period is over.

Penalty is basically a math problem based on whatever is your states daily Medicaid reinbursement for Room&Board paid to the NH AND the $ amount of the transfer. So 100k transfer with $200 a day R&B is a penalty period of 500 days. Yeah Dave 500 days that either family private pays for care or draws straws as to who gets mom first. To me, transfer penalty when it's property is hard to fight as all data is there. What often happens is that the review on moms info takes maybe 3-4 mos before the penalty surfaces. But surface it will and Medicaid sends the DPOA and the NH a letter as to the inquiry. NH is going to want somebody to sign off to be financially responsible for the bill to date & future care. Otherwise mom will get a 30 day notice. This will not be pretty.

Based on posts on this site, what often happens if the property is held by family is for family to simply sign it back to mom. It then remains an exempt asset for moms lifetime. Family will have to pay all costs on it though as mom is required to basically pay all her monthly income (her SS, retirement) to the NH as the required copay or SOC ( share of cost in Medicaid-speak). And when mom dies, it becomes a non exempt asset of her estate and subject to the required attempt of estate recovery due to MERP.

Just how MERP runs is very interdependent on whatever exemptions and exclusions are in your states Medicaid program and your states property & probate laws. Keeping moms house is -to me- like having a 2nd or 3rd home in which you pay all costs on from now till whenever they die and then through however long the probate & merp process takes and paying all on a property that you do not & may not ever own, so it runs a risk. Most of us cannot afford a 2nd home and are risk adverse.

What seems to happen is family is all kumbaya at the beginning, but big Sissy doesn't pay property taxes; BIL stops grass cutting; Lil Sissy has kids tuition/wedding/drug issues that is her priority...... So everything on maws house becomes your wallet and your problem although they all stand to benefit if sold and $ left after MERP & probate closes.

Please, please, please before this goes on, do 2 things: find out if the QCD will cause transfer penalty & put pen to paper to see just what the "nut" is on moms house to see if affordable. There could be new increased costs (taxes, insurance) to factor in. If mom lived another 2 years (avg NH stay) what would her Medicaid R&B tally be? Is the property worth way way more than what Medicaid MERP payment could be, so that it makes sense to repay Medicaid and keep it? OR is it a very very low value so that the documented costs to keep the empty property offset the Medicaid MERP tally so that recovery is not done as it has no cost-benefit to attempt? Add in the cost to do probate too. Are there other factors that make the whatevers on moms property worthwhile? Add all.....does it make sense to keep property???

If so, take all moms legal and property paperwork and you, her dpoa & mom meet with an elder law atty. I'd suggest one NAELA. You want to get her legal updated and have the atty forward all to whomever will be your Medicaid MERP savvy probate atty. Good luck and keep your sense of humor going.....
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Dave, if your Mother is now in a nursing home and Medicaid, funded by the taxpayers, will be paying for her care. Medicare will put a lien on her house if she still had owned the house during the past five years. A quit-claim deed will look as a "gift" in the eyes of Medicaid thus there will be a penalty.

Quit-claim deeds, outside of the realm of Medicaid, usually are not a good idea especially if Mom had owned the house for many decades and the value had sky rocketed. What will happen, when it is time to sell the house, you could find yourself faced with mega capital gains which are taxable. The reason is that with a quit-claim deed, the base value of the house goes all the way back to when Mom had bought the house. The house needs to be your primary residence in order to get the Federal allowed deductions allowed for house sales.

If the house is inherited, the the base value is that of the day one inherits a house.

I know, none of this is easy :(
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I would think not. Not sure you'd find a reputable attorney to represent you as his pay back would be nil. I would let it go. Where would you file? Small claims court? They have a limit for amount of damages, etc. Woth no contract this seems frivolous.
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Consult an attorney who specializes in Elder Law.
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With having filed for medicaid and their five year look back plus they claim the house for payback, I don't think that you can at this point without it having a negative impact on her medicaid application.
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