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7 Lies Your Friends Say About Medicaid and Elder Law in Florida

Every day we see people dealing with difficult circumstances in trying to get good care for their loved ones while trying to protect the family’s assets from the high costs of long-term care.  We also see a number of myths and falsehoods about Medicaid and asset protection planning that we want to dispel or clarify so you can get good advice in helping your loved one.

Lie #1: You can give away $14,000 per year to protect your assets from the nursing home

The $14,000 per year gifting limit is based upon the federal estate and gift tax and has absolutely nothing to do with Medicaid in the Medicaid application process. The reality is that you're not able to give away any assets at all within five years of applying for Medicaid for your loved one. If you are giving assets away, then the assets must be returned in order to apply for Medicaid. We have a previous blog post on calculating the Florida Medicaid transfer penalty.

Lie #2: Having your name on the elder’s assets can protect them from the nursing home

Having your name as a co-owner of your mother's assets when she goes into the nursing home does not protect these assets. Medicaid considers any asset that your loved one as co-owner as their sole asset. If your name is on these assets, you must prove that these assets are yours in order to exclude them for Medicaid purposes. The basis for the rule is that many elders add their children to their assets as a matter of convenience. Thus, even if you are a co-owner of your loved one’s bank accounts, 100% of the asset is countable for Medicaid purposes unless you can show otherwise.

Lie #3: The state of Florida can take your home upon your death if you get on Medicaid

While there could be concerns here, it is rarely an issue. The state of Florida is a creditor in the Medicaid applicant's estate and as a creditor, this may be an issue as part of the probate process. The further truth, however, is that a Medicaid applicant’s homestead property is not subject to the decedent’s creditors, which includes the state of Florida as a creditor. Thus, even if your loved one was in a nursing home for a long time, and the state of Florida has a claim in their estate, Florida will not be able to take the protected family homestead as part of the probate process.

Lie #4: Nursing homes that accept Medicaid give bad care

It is illegal for nursing homes to discriminate care based upon payer source. Thus, if your loved one is receiving rehabilitation due to Medicare, an HMO, or is receiving long-term care through private pay or Medicaid, the nursing home and does not discriminate for care purposes. The further reality is that care in nursing homes certainly varies, but this is not based upon Medicaid versus private pay. If you want to make sure your loved one is getting good care in a nursing home come you should look at hiring a life care planning attorney to assist you.

Lie #5: If your income exceeds the income cap, you cannot get Medicaid

If your income exceeds the Medicaid qualification income, which is $2205 per month for 2017, then Medicaid will only be allowed for nursing home purposes if a qualified income trust is established. With a properly established and funded qualified income trust, the elder’s income can greatly exceed the income cap. The qualified income trust is a special type of trust that allows for Medicaid qualification. When the applicant’s gross income exceeds the income cap, the applicant and or their family should hire an elder law attorney for assistance. Visit the elder law section of our website for Medicaid income and asset limits.

Lie #6: If my mother goes into the nursing home we will lock all of her money into a Special Needs Trust

While special needs trusts exist for Medicaid planning purposes, there is no “magic” special needs trusts that can protect your loved one’s assets.  There are, however, great asset protection planning options that can help, even when your elder is already in the nursing home or assisted living facility, even within the five year “lookback” period. A good board certified elder law attorney should assist you here.

Lie #7: You should avoid an attorney and get a cheap or free power of attorney from the internet

One of the most important estate in and capacity planning documents that you can create is a durable power of attorney. Going the cheap route by visiting a free or low-cost website, or even an inexperienced attorney, may cost your family thousands and thousands of dollars. The reality is that a great durable power of attorney, which includes many advanced options for asset protection, will be necessary under many circumstances. Thus, you would definitely be penny wise and pound foolish and getting an in adequate power of attorney. If you have a bad power of attorney, you may not know it and it may be too late for your family to protect assets in the event you become incapacitated.

Remember, if a family member or other loved one is in a nursing home or assisted living facility, it is never too late to get good advice on asset protection, estate planning and care planning.  Call us today for a free initial consultation!

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D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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