Is it worth it to pay a lawyer to help file for Medicaid? - AgingCare.com

Is it worth it to pay a lawyer to help file for Medicaid?

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I met with an elder lawyer recently. She came highly recommended by a friend. Needless to say, she charges a lot of money. What she's offering is to A) set up a trust so that we can hold onto at least 1/2 of my mother's assets, and B) to gather documents and file the application for Medicaid. I (the only child) have no idea what I'm doing as far as Medicaid and would love legal help like this. The fees will come out of my mother's account (but I haven't yet mentioned this to her). Those of you with experience in this area, is it worth the exorbitant fee to have a lawyer handle this? I certainly would not know how to create a trust, and the Medicaid application seems tedious and complicated.

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A great deal depends on the assets and also the state. All trusts are not "protected" from Medicaid. If this is a complicated situation, then an elder law attorney is probably a good idea. Having recommendations is also good. As Bob mentioned, you can make an appointment with Medicaid to ask questions so that is an option.

Most of the people posting seem to think it's a good idea. I simply paid out of pocket but much more is known now so if I'd had it to do over maybe I'd do it differently.

Good luck,
Carol
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This is a great question, and there are several good comments posted by members of our AgingCare.com community.

One of the members mentioned that her father had "a significant monthly spend down" to qualify for Mediciad, even though her mother is still living.

This is one example of the many complexities of applying for Medicaid coverage for nursing home care. Unless both spouses need nursing home care, you shouldn't need to spend down their assets; Medicaid regulations require only that the assets be held in a way that complies with the laws and regulations in your state that protect Medicaid applicants and their spouses. Often, it takes an attorney in your state who is trained in the field to recognize all of the facts and know which regulations can help people who are going through tough times of transition.

A Committee On The Unauthorized Practice Of Law Appointed By The Supreme Court Of New Jersey issued an Opinion on May 16, 2016 to answer questions involving people in similar situations.

The New Jersey committee took a look at: "non-lawyer advisors [who] advised a family member that she could receive monies as a caregiver when the family member did not qualify for that status; advised a family member to spend down an IRA when it would have been more reasonable to purchase an annuity with those monies; advised a family member to draw down her assets when it would have been more sensible to transfer monies to a disabled child; advised a family member to transfer real estate when it would have been prudent to address the significant tax implications of that plan; and the like."

In all of those situations, you need legal advice to protect yourself and your family.

"[A]dvisors [had] also counseled people on wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on the standards for Medicaid coverage; on nursing home laws; on transfers of property; on the impact of marriage and divorce; on estate administration and the elective share; and similar legal matters." The New Jersey Committee said that these non-lawyer advisors "may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like."

Guidelines may be available in your state for decisions on whether to go with a non-lawyer application preparer, or hire an elder law attorney who understands the laws and regulations that can help you.

In 2011, another review board in Ohio came to the conclusion "that Medicaid planning requiring specialized legal training, skill, and experience constitutes the practice of law. However, especially in situations where the applicant’s income and resource levels are near the Medicaid limits, there may be some Medicaid planning scenarios involving only document review and a financial calculation." So, "whether nonattorney involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis."

The Attorney General in Tennessee said people should consider "whether the legal assessments or advice at issue would require the professional judgment of a lawyer."

The Florida Bar’s Standing Committee on the Unlicensed Practice of Law heard evidence in 2015 about the types of harm caused by non-lawyer Medicaid planners, including: Denial of Medicaid eligibility, Exploitation, Catastrophic or severe tax liability, and Purchase of inappropriate financial products threatening or destroying the client’s life savings.

These results illustrate how you may not end up saving money by relying on a Medicaid application preparation service.

Read more at:
https://www.judiciary.state.nj.us/notices/2016/n160518c.pdf

http://www.floridasupremecourt.org/decisions/2015/sc14-211.pdf
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Unless the situation is very straight-forward, it is worth it.

My mother had no assets, was renting, didn't own a car or much of anything else. Her only income was SS. She first needed in-home care and then eventually a nursing home. One daughter was able to complete the application, no sweat.

When it comes to a situation where there are assets to spend down and/or preserve, where there is a community spouse, where the monthly income is over the limit, where there is a disabled adult child, if assets are owned jointly with other people, if there is a reverse mortgage, if there has been significant gifting in the last 5 years, is there is anything at all not perfectly routine, then, yes, paying a lawyer is worthwhile.
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First question: Is mom married? That has a bearing...

Also: "Half the money" is a vague term...Depends upon how much is half.
There is a top limit, although it is generous as I see it.

By all means get a qualified and WELL RECOMMENDED elder care atty, especially if mom has substantial financial means..

It is also a good idea to pay a fact-finding visit to your county social services department..You can speak to them without applying for Medicaid at the time of the visit...

Tip: Go to your social services office about a half hour before they open on a Wed morning. Be close to first in line...(Don't ask why I say this.)

Grace + Peace,

Bob
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During a hospital stay, a social worker completed the paperwork and my dad was approved for Medicaid. However, To jeannegibbs point, he is married, had a couple of assets which cause him to have a significant monthly spend down which almost makes having Medicaid useless. My mom also had to write a spousal refusal letter so she cannot get Medicaid and now she needs it. If you can manage a lawyer, I'd say it's worth it. There may also be non-profit legal help in your area, a quick google search can help you find that answer. Good luck.
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Absolutely! Best $3500 I had ever spent! The complexities of the process, coupled with the conflicting information--that is, if you can get any information to begin with--is not something to tackle unless you do not work full-time, are not faint of heart, and if you have a legal degree. Run to your nearest attorney, but one who specializes in Medicaid.
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Most nursing homes have a Medicaid Specialist who helps you fill out and apply for the Medicaid. My husband is in a Veteran's Home and the girl who helped was wonderful and put me completely at ease even though it is a complicated and stressful process. We applied in December and it was not approved until May 1st. It was retroactive to December. The Medicaid Specialist put me in touch with a Lawyer who also was a specialist in the area of Medicaid. Her first session was free. She told me what I was able to safely spend and what I was not. I was shown how to set up Bank accounts and how to borrow against my husband's whole life insurance. He still has some of that insurance which I must pay interest on in order to retain it. Your insurance agent, your Medicaid Specialist and Lawyer are all a team who will help you. It is such a relief to know that my husband will be taken care of at the home for as long as he needs it. The process needs to be reviewed yearly so mine is coming up in December. I have no idea what that entails, but the Medicaid Specialist said it will be a review of the year to make sure I have no new income or nothing has changed in my financial situation.
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No! I process MA applications for a living. just make sure to list everything, wait for the determination & appeal anything you don't agree with. depending on the type of Medicaid she is requesting (I live in NC) there are different income limits for i.e., private living Medicaid, long term care, or special assistance. don't waste $ on a lawyer. just know the state/counties eligibility requirements.
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I would agree that a lawyer that specializes in elder law would be worth the money. Medicaid is very cumbersome, and can be tricky. If she is not married, any assets she has (even in a trust) can be recovered, even after she dies, so be sure you get someone who really knows what they are doing and has done it before. It would not be out of line to ask for recommendations and call people this lawyer has helped, (or their family members) to see what happens later. If she does not own a home, or have significant $$, you can probably do ok with the help of your local DHS office. Before you pay the lawyer, I would make an appointment to meet with a social worker from the DHS and just talk about what her options are. When my gma had to go to the nursing home, her only asset was her home. The gov't ok"d her Medicaid to pay for the nursing home care, but put a lean on her house. So when she passed away, there was $23,000 that had to be repaid to get clear title to the house. My sister wanted the house, and took out a loan to pay the $ and it all worked out fine. But the gov't will look for assets and they have a "recovery" program. Also, you can't transfer assets within 5-7 yrs of needing Medicaid or that is seen as fraud.
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A very experienced elder law attorney will be a certified elder law attorney and have CELA after their name.
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