Guest Blogger: Jerry Rothkoff

Medicaid

The Importance of Obtaining the Proper Advice When Planning For Your Elderly Loved One

More and more seniors and their families are seeking the assistance of a senior professional to help guide them through the maze of long-term care planning options. In many situations in which seniors face the prospect of long-term care costs, Medicaid is a necessary safety net.Medicaid is an extremely complicated yet valuable program that can provide health care services to a senior living at home, in an adult day setting, in an assisted living facility, or in a skilled nursing facility. We meet with many families who are in the process of applying for Medicaid, who require legal guidance in order to receive Medicaid approval.Although a non-attorney Medicaid application processing company can prepare an application, there are limitations. These companies are specifically prohibited from providing legal advice regarding transfers of assets that are allowed by Medicaid. In addition, there are several exceptions to the general rule that an individual cannot transfer assets within five year years preceding a Medicaid application. Medicaid processing companies are not aware of these valuable exceptions, and if they are, they cannot provide the necessary legal advice. Providing such legal advice may constitute the unauthorized practice of law, which is criminal conduct. This lack of guidance often results in financial hardship for members of the family, specifically a spouse or disabled child.To put it simply, the main goal of a Medicaid processing company is to have the applicant approved for Medicaid. Our goal, as an elder care law firm, is to ensure the client receives the best possible care in the least restrictive environment. We believe the most important service we can provide for our clients is health care advocacy. Yes, a Medicaid application, in many cases, is a part of our services. However, unlike a Medicaid application company, our goal is to protect the individual and their family. Medicaid can be a tool to reach our goal, but Medicaid should not be the ultimate goal. Among the tasks that our elder care law office performs includes:

  • Advising on potential alternative housing options, and what state and federal resources are available, including VA benefits.
  • Help a caregiver navigate all benefits available to keep a loved one at home or in a community setting, if appropriate, including services through our elder care coordinators.
  • Advising a prospective assisted living resident at time of admission what the assisted living’s Medicaid policy is and how that will affect future long-term care planning.
  • Advising about proper estate planning documents including wills, financial powers of attorney, and advanced directives, and drafting revised or new documents.
  • Advising on the potential need for guardianship and the administrative process of guardianship, advising on proper authority to transfer assets, sign agreements, and deal with third-parties on behalf of a Medicaid applicant.
  • Advising on methods to pay the nursing home, including the regulations involving the statutory scheme and standards for both Medicare and Medicaid coverage.
  • Advising on nursing home laws and regulations involving transfers from a nursing home to another nursing home.
  • Planning with the home, including advising about and transferring the home to a healthy spouse, caregiver child, disabled child or a trust for benefit of disabled child or child under the age of 21.
  • Determining the amount and value of countable and non-countable Medicaid assets, analyzing forms of ownership and barriers to liquidation of resources and carrying out changes in resource/asset ownership.
  • Advising clients regarding and defending certain uncompensated transfers that have occurred during the Medicaid five-year look back when a statutory exception applies.
  • Advice regarding a child with a disability where there is a parent who may be Medicaid eligible as well, and potential special needs planning for the disabled child and transfers of wealth from a Medicaid applicant to a trust for the benefit of a disabled child or other disabled individual.
  • Advice regarding the determination of income and resources statutorily protected for the benefit of community spouse, including methods available to increase both the spousal income allowance and spousal asset allowance to the community spouse through a Medicaid Fair Hearing.
  • Understanding and giving advice about the ethical components of Medicaid applications and eligibility, including disclosure of known assets and income so as to prevent any claims of fraud or benefits wrongfully paid, and what is considered adequate cooperation with the eligibility process.
  • Advice regarding marriage, separation, divorce, and other family law issues and how they affect the determination of income and resources and transfers of resources within the look-back period for Medicaid applicants.
  • Advice regarding estate administration, the death of a spouse within a look-back period and the elective share and how they affect the determination of income and resources and transfers of resources within the look-back period for Medicaid applicants.

Virtually all of the above advice constitutes the practice of law. A life care planning law firm takes into account the appropriate healthcare considerations for the client, combined with the financial and tax consequences. A Medicaid processing company will not have these considerations in mind when handling your loved one’s Medicaid application.

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