For those unable to afford the cost of nursing home care, the Medicaid program may assist in meeting those costs.
Medicaid is essentially a needs-based program. A prominent rule of Medicaid eligibility is that one cannot give his or her assets away for the purpose of reducing his or her assets to what the program considers sufficiently impoverished (which number differs depending upon whether a nursing home resident is unmarried or married). This rule is enforced by requiring Medicaid applicants to disclose all gifts made within five years of a Medicaid application date. Gifts made within five years of the application date will result in a disqualification from Medicaid benefits (unless the applicant can demonstrate that the gift(s) were made for a purpose other than facilitating Medicaid eligibility). The biggest concern for applicants is that the disqualification does not begin until an applicant resides in a nursing home and is impoverished (possessing assets at or below the applicable asset level (discussed above)). The result is that one requires nursing home care, is without ability to pay for such care, and is ineligible for Medicaid assistance. These circumstances are problematic.
Many seek to explore the options that are available to avoid depleting family assets on nursing home costs--realizing that even a short nursing home stay can eliminate a modest inheritance intended for loved ones. An ostensibly obvious plan is to gift assets and wait five years before applying for Medicaid. For those uncertain that nursing home care can be postponed for five years, some alternative is required.
Many attorneys will advise clients with respect to complex, irrevocable trusts that are intended both to place assets beyond Medicaid consideration yet permit recovery of trust assets should a Medicaid application need to be filed within five years. These trusts contain complex “recovery” provisions and complex tax provisions, and in some circumstances these complex provisions have created the result that trust assets are considered available to an applicant (with the further result that the applicant is considered not to be impoverished) requiring convoluted efforts to recover assets from an “irrevocable” trust, which efforts may or may not be successful.
At the Law Office of Richard M. Russell we offer a much simpler plan that may–depending upon how events transpire–place assets beyond Medicaid consideration. The plan is not irrevocable and can be changed at will: unlike an irrevocable trust, no loss of control over assets results. Similarly, the plan is based upon well established Medicaid law and is unlikely to prove ineffective even as states seek to impose stricter eligibility requirements. Given that nursing home care is not inevitable, this plan is a suitable means to address circumstances that may–but will not necessarily–come to pass.
For those committed to preserving assets and willing to endure the consequences, the irrevocable trust may be a suitable device. For those desiring to take reasonable steps to preserve hard-earned family assets, yet are uncomfortable with the drastic consequences of the irrevocable trust, our alternative is a worthy consideration.
Please contact us to discuss these complex matters in more detail.