Ag Law

By Natalie J. Boocher

  I personally find being an elder law attorney very rewarding, and I mostly attribute this to the level of assistance I am able to offer families during times that traditionally bring stress. When it comes to preparing for assisted living or long-term nursing care, there are two distinct intervals of time in the process. Our previous two articles focused on the first period which must be completed at least five years in advance and consists of various estate planning techniques. This article will focus on the second phase which arises when you, or a loved one, is in imminent or immediate need of assistance.

Generally, individuals who reach out to me with Medicaid related questions are faced with two scenarios, (1) a loved one is needing more assistance and they are seeing the need for a nursing home in the near future, and want to know where to begin; or (2) a loved one is in the hospital and will be transferred to a nursing facility for rehabilitation and/or permanent placement. For either of these scenarios, clients are often pleasantly surprised by the ways an elder law attorney can help navigate this process.

There is no way to sugar coat it, applying to obtain Medicaid coverage for long-term care is a long and complex process. There is information and numerous documents which must be collected, and both income and asset limits which must be met on the 1st day of the month prior to even making an application. After the submission of an application, a meeting is scheduled with a Medicaid caseworker at which health information is provided, questions are answered about all assets and income for the previous five years, and the documentation to prove eligibility for several factors is provided. There are then pending lists of follow-up documents to clarify any factors which remain unclear for eligibility. It is often shocking to clients that an attorney hired to assist a family can complete all of these steps, including the entire application process, while also offering advice during any required spenddown and ensuring that only the necessary funds are spent down to obtain eligibility.

This process becomes exponentially more important when there is an individual entering assisted living or a nursing home while their spouse remains at home. An experienced elder law attorney can ensure that both an adequate and accurate amount of income and assets remain with the spouse living at home, so they can continue to feel secure in financially caring for themselves. Additionally, there is crucial planning which must occur at this point to both remove the applicant spouse from current assets, while planning for the possibility of the at home spouse needing nursing care in the future. Without this, every dollar of assets the couple owns will need to be spent down in order to obtain Medicaid coverage when this second spouse needs care.

Beyond eligibility considerations, an elder law attorney can also advise you on how to deal with Medicaid’s recovery of assets from an applicant’s spouse or an applicant’s estate; maximize asset protection; what accounts need to be transferred or spent down; what the penalties are for transfers of assets to third parties; how to set up and fund an income trust, if required, and so much more. During the application process, which can take several months, issues may arise which must be dealt with in a timely manner. For example, if an application is denied because Medicaid improperly calculates an exempt resource as a non-exempt resource, you will likely want an attorney to represent you at any required appeal hearings and deal with Medicaid’s attorneys to resolve the issue.

We have discussed just some of the many complexities involved in the Medicaid process. In my opinion, it is always a good idea to seek the advice of an estate planning and elder law attorney who will know what questions to ask and be able to guide you through the Medicaid process on behalf of your loved one. As I stated before, this is the most rewarding part of working in this area of the law. Not to mention all attorneys’ fees for this application process count toward the spending down of an applicant’s assets so there is absolutely no downside to obtaining this needed assistance. In fact, from what I have seen when families attempt an application and are denied, hiring an attorney can actually save you thousands of dollars, if not tens of thousands of dollars, when one month of private pay nursing care can average over $8,000.

There are many factors that can disqualify you from receiving benefits. If you are depending on those benefits to pay for your healthcare expenses, you may not be able to afford any expensive delays. Speaking to an attorney early in the process can help you develop a spend-down strategy that will get you qualified sooner and leave your loved one with more resources. More importantly, an experienced elder law attorney can help you structure your assets in a way that allows eligibility while retaining more value.

Natalie J. Boocher is a long-time farm elder law and Medicaid planning attorney with Schwarz Law Office, PC, helping farmers protect their farms from the nursing homes and Medicaid. She can be reached at 574-643-9999 and www.thefarmlawyer.com.

These articles are for general informational purposes only and do not constitute an attorney-client relationship or specific legal advice.