Common Questions about Florida Elder Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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How Can I Stop My Loved One From Writing Checks?
We frequently receive questions regarding children trying to help when their parents going starting with dementia or Alzheimer's. The question is frequently something like:
I have durable power of attorney for my mother, but she keeps writing checks and making poor financial decisions when I’m not around. What do I do?
We have seen situations like this many times - Mom or Dad is getting forfetful, some type of dementia, and is not spending her money well. He or she may be writing checks to charities, scammers, needy family members, etc.
So, while durable powers of attorney are an important part of a well-rounded estate planning, they do have one major shortcoming: A durable power of attorney appoints an agent to act on behalf of the Principal (e.g., Mom or Dad), but it does NOT stop the Principal from still conducting business on his or her own. We frequently say that a durable power of attorney is a delegation of your rights, but it does not actually take away your rights.
The big picture is that a durable power of attorney is not really enough to stop someone with dementia from being taken advantage of. The power of attorney cannot stop mom/dad from writing checks/paying bills. There are some things that can help in these difficult situations:
Set Up a Revocable Living Trust
If Mom or Dad does not already have a revocable living trust, then the durable power of attorney may allow the child to set up and fund a revocable living trust in order to help Mom or Dad. Florida law says that a durable power of attorney executed after October 1, 2011, must specifically be initialled to allow the power of attorney to execute a living trust on mom/dad's behalf. Assuming this power is available, as power of attorney, the child may be able to transfer the parent’s assets into the trust and then manage the trust as trustee. Only a trustee can conduct business on behalf of a trust, therefore, the parent would not be able to write checks or conduct financial transactions for any assets that are in the trust.
Of course, we strongly recommend that you consult with an attorney regarding this option and whether the child is legally authorized to establish a trust on your parent’s behalf.
The next step may be to consider an adult guardianship proceeding. A guardianship proceeding will include an incompetency hearing. If the court finds your parent to be incompetent, the clerk of court will issue an order of such finding and will appoint a guardian to manage your parent’s affairs. You can then give copies of the court order to all banks and financial institutions where your parent holds accounts to notify the bank or financial institution that your parent has been declared incompetent by the court and no longer has legal authority to conduct transactions on his or her own behalf.
We typically recommend guardianships as a last resort only - if Mom/Dad is highly functioning (i.e., can go to the bank themselves and refuse to give up the car keys/check book), is not recognizing their own dementia, for instance, or if they are subject to elder exploitation. Florida also has an elder exploitation injunction that can help people when they are being exploited.
We Can Help!
You may be struggling to help your loved one make the right decisions, hitting roadblocks, looking for Medicaid, waitlists in trying to get your loved one placed in an appropriate facility, or constantly fighting with doctors, hospitals (or even other family members) because you don’t have the necessary legal or financial authority to oversee your loved one’s affairs and/or care.
Solid legal and financial planning is your answer and can help you put an end to all of the confusion and overwhelm that you currently face.
If you read this, you may want to read:
- How Your Estate Plan can help prevent elder exploitation
- When Durable Powers of Attorney Cannot Prevent a Guardianship in Florida
- Emergency Temporary Guardianships in Florida
How is VA Pension counted for Medicaid purposes?
This is not an easy answer as you may think!
When someone is on Medicaid in Florida, there is both an income and asset limit for eligibility. The financial guidelines are provided at this link. Medicaid counts the applicant's gross income for qualification purposes. When income exceeds the income cap, a qualifed income trust is necessary in order to qualify for Medicaid.
But what about when the Medicaid applicant is receiving VA Pension? VA Pension can be very helpful for paying for an elder's assisted living or in-home care. VA Pension Benefits are outlined here. The highest Pension benefit is known as "aid and attendance," with monthly benefits as follows (2020):
- Married Veteran: $2,266/m
- Single Veteran: $1,912/m
- Surviving Spouse: $1,228/m
But if someone is applying for Medicaid, how much of the Pension income is countable for gross income purposes? The answer is NOT ALL! Medicaid excludes "aid and attendance" income from the gross income calculation. But the answer does not even stop there! Aid and Attendance is only the highest level of VA pension benefits. Lower levels are "base pension" and "housebound." Interestingly, the very base pension amount is countable as income for Medicaid purposes. For 2020, base pension levels are as follows:
- Married Veteran: $1,501/m
- Single Veteran: $1,146/m
- Surviving Spouse: $ 767/m
An example is as follows:
Surviving spouse of a wartime veteran is receiving $1,228/m in VA Pension Aid and Attendance (the maximum). Her Social Security income is $1,500/gross per month. Her income for Medicaid purposes towards the income cap ($2,349/m in 2020) is $2,267/m. This means that she does not need a QIT to obtain or keep Medicaid benefits. ($1,500 plus $767 (the base pension amount) = $2,267/month, which is lower than the Medicaid income limit). Notice that only the $767/m counted as income for Medicaid purposes, not the full $1,228/m that she receives from the VA.
When you are applying for Florida Medicaid and VA Pension benefits are already coming in (mostly meaning Aid and Attendance) then these calculations will be very important.
It is also important to note is that if the elder receives Medicaid in the nursing home, the VA will need to be notified and then his/her VA Pension (including Aid and Attendance) will eventually be reduced to $90/month, which is not countable as income for Medicaid purposes.
VA Pension income does not include any VA Disability payments. VA disability payments (based upon an injury while serving our country) is all countable income for Medicaid purposes, so it is important to know what type of VA income is being received.
VA Aid and Attendance from DIC Benefits
VA "aid and attendance" is a difficult subject because the names for VA benefits programs are not always helpful. We mostly look at Pension benefits for helping our veterans, but the VA program also provides benefits known as "aid and attendance" for those veterans that were injured in service and for his or her surviving spouse. The program for a surviving spouse, known as DIC (Dependency and Indemnity Compensation) provides $1,340.14 (2020) to the surviving spouse of a 100% VA disabled person. The surviving spouse can also get an addtional $332.00/month when they need help with their activities of daily living (eating, dressing, bathing, toiletting and transferring). This payment of $332.00/month is not countable income for Medicaid purposes
If you want to learn more about Medicaid benefits in Florida, please look here.
If I am on Medicaid, will Florida take my home upon death?
The basic answer is "no." If you die and your home goes to your heirs-at-law (i.e., family members) then the state of Florida cannot take your homestead property. It is true that Florida has a claim in the decedent's estate as part of estate recovery laws, but in Florida, your homestead property is exempt from your creditors, even upon death. There are a few caveats here:
- Your last will and testament must not direct that your home be sold; and
- Your home must not have been rented during your lifetime, which would cause it to lose its homestead status.
The homestead property can be sold and the proceeds can be protected, importantly. Another issue is that the home may be sitting there for a long time, which creates more issues. It may be best to protect your homestead property in advance with an irrevocable asset protection trust.
You may also ask:
- What happens to my homestead if I go on Medicaid in Florida?
- My elder is on Medicaid - can we sell the homestead property?
If you want to learn more about asset protection in Florida, download a free copy of my book, Don't Lose Your Nest Egg to a Florida Nursing Home. This book will explain ways to protect your assets and pay for your long-term care, among other important aspects.
What happens to my home if I go on Medicaid?
The rules for Medicaid and homestead property in Florida have different rules depending on if you are single or married.
- Married Couple: With a married couple and one spouse applying for Medicaid, Medicaid does not look at the value for the home. The at-home spouse (the "community spouse") can live in the home, no matter the value, and it will not effect the Medicaid applicant spouse. Further, the cost of the home may help the community spouse keep more income. We may be concerned if the spouse at home - the community spouse - were to predecease the Medicaid recipient, but that is another issue.
- Single Person: If the Medicaid applicant is single and needs Medicaid in the nursing home or assisted living facility, the applicant is allowed to own a home of up to $603,000 in value (2021). Even if the applicant never returns to the home, the homestead is protected and will never be made a countable asset for Medicaid purposes (unless rented!). Upon the applicant's death, the homestead is protected from creditors, including the state of Florida, if it descends to your heirs at law (i.e., your family). We have more on Medicaid estate recovery here. Problems can occur though because all of your income goes to the nursing home as part of your patient's responsibility. This means that your family will have to pay for the home's mortgage, upkeep, insurance, taxes, etc., as your assets have been depleted and your income goes to the nursing home! Renting the home is possible but this removes the homestead protection, so that can be an issue as well.
We have more information on Florida Medicaid income and asset guidelines here.
If you want to learn more, please see the following:
- Our Free Guide to Protecting Your Florida Homestead.
- Selling your homestead in the event you are in the nursing home
- Florid Medicaid Spend-Down Planning
If my spouse is in on Medicaid, how much of my income can I keep?
If your spouse is in the nursing home on Medicaid (the "institutionalized spouse"), you are allowed to keep ALL of your income. Medicaid allows the spouse at home (the "community spouse") to keep all of their income.
The next question is what income can the community spouse keep of the institutionalized spouse? The big picture is that the community spouse can divert up to $2,030/month (2018) from the institutionalized spouse's income with a maximum amount diverted up to $3,020.50/month. The amount diverted depents upon the community spouse's own income and the amount of housing costs the community spouse has.
When your spouse is in the nursing home, it can be a very stressful time. Find our more about the Florida Medicaid and Spousal Diversion on this webpage.
If you are reading this, you may want to read:
What is the difference between Medicare and Medicaid?
When you or your loved one has gone to the nursing home for rehab, which frequently occurs after a three day hospital stay, the family has to learn the difference between Medicare and Medicaid!
Simply put, Medicare is a form of health insurance for those over age 65 and the disabled. Medicare pays for someone's doctors, hospital stay, medical supplies, etc. No health insurance is long-term care insurance and Medicare is no exception. Medicare can pay for up to 100 days of rehabilitation in a skilled nursing facility after the patient had a three-day qualifying stay in the hospital. The point of the rehab is to get the patient stronger through therapy. When the patient is no longer getting stronger, Medicare will typically end. Medicare completely covers days 1-20 while co-pays of $176 (2020) are for days 21-100. If the patient has a Medicare supplement (i.e., a Medigap policy), the policy may pay for the co-pays during the patient's stay. Most people who work during their lifetimes will get Medicare.
If the elder has to stay in the nursing home after Medicare ends, the patient may need to apply for Medicaid. Medicaid is the government program that helps the indigent pay for their care in a long-term care facility, such as the nursing home or assisted living facility. In order to qualify for Medicaid, the applicant must pass a strict test looking at the applicant's income and assets. We have the most recent Medicaid income and asset numbers for Florida here. When the elder is in a nursing home, now may be the time to protect assets for his or her care, which is done through a good elder law attorney.
If your loved one just entered the nursing home, or may not be safe at home, you may also want to read:
- Questions to ask when your elder just entered the nursing home
- Will my loved one get good care on Medicaid?
Finally, we have a free book that may be be able to help. Please download Protect Your Nest Egg from a Florida Nursing Home today.
My Elder is receiving VA Benefits - can we sell or rent the homestead?
If your elder is receiving VA pension benefits, which typically means Aid and Attendance, he or she is allowed to own a home as a non-countable asset. A problem may occur if the elder is not living and home and the family wants to sell or rent it. Selling or renting the home will most likely stop the VA pension benefits as you would be converting a non-countable asset into a countable asset. The VA cross-references with the IRS and they will find out about the home sale, so you should do something to help.
It is likely that the best solution to selling or renting the home when an elder is on VA benefits is to place the property into an irrevocable trust. This trust has a lot of potentially positive benefits in the right situation, such as:
- Avoiding probate upon the elder's death;
- Allowing the property to be sold tax free (if it has appreciated less than $250,000);
- Allowing rental or the property while the elder is in a nursing home/assisted living;
- Allowing a step-up in basis upon the elder's death so heirs can sell it tax free;
- Starting the Medicaid five year "look-back" period;
- And more . . .
If your elder is looking to apply for VA benefits, or if you just want to consider protecting the homestead property from the nursing home, please fee free to download a copy of my free report on protecting your Florida homestead property.
How are IRAs counted for Medicaid purposes?
When an elderly or disabled person is looking to apply for long-term care Medicaid in Florida, the applicant must document their income and assets for Medicaid purposes, which are set forth in our asset and income levels webpage. Generally, a single person is only allowed to have some $2,000 in countable assets while a married couple will be allowed some $128,000 (this amount changes every year) in countable assets.
Part of the application process means looking at countable assets. Countable assets include bank accounts, stocks, bonds, mutual funds, annuities and more. Basically, the applicant must disclose all assets as part of the process. Interestingly and importantly, the applicant's IRA/401K/Qualified Plans may not be a countable asset for application purposes. The rule is that if the applicant is taking periodic distributions from their IRA/401K/Qualified Plans, the account is not a countable asset for Medicaid purposes. Instead, any distributions from the account are counted as income for Medicaid purposes. This would mean, for instance, that any distribution from the IRA/401K/Qualified Plan may go to the nursing home as part of the patient's responsibility. This would also mean that any distributions from these plans could require a Qualified Income Trust, among other important ramifications. The application of this rule can be pretty tricky, with an example as follows:
Example #1: Mom is an unmarried nursing home resident and has $50,000 in her checking account and $50,000 in stocks and bonds. Her gross income is $2,000/month from Social Security. In order to get Medicaid to pay for mom's nursing home care, she is only allowed $2,000 in countable assets, meaning that she must spend down most of her assets (some $98,000) before Medicaid will assist her. Of course with a good elder law attorney, assets can be protected from the nursing home.
Example #2: Same facts but mom only has $10,000 in her checking account and $90,000 in her IRA. If mom is taking period distributions of $300/month from her IRA, she will only have the checking account as a countable asset for Medicaid purposes, with the IRA not counting as an asset. Interestingly, the $300/month coming from the IRA will take mom over the income cap for Medicaid purposes, meaning she will need an income trust in order to get Medicaid. Also, any distributions from the IRA will be countable income for Medicaid purposes, which means that mom will not be able to take money out of the IRA once she is on Medicaid to use it for her benefit!
In both examples, mom or her family would want to see a good elder law attorney to assist with the Medicaid application and possible protection of assets. In example #1, the elder law attorney may be able to help the elder legally spend down the assets. In example #2, an elder law attorney would be needed to help establish the Qualified Income Trust, among other things.
Interestingly, the concept of the IRA as income an not an asset may present further problems. Once the applicant receives Medicaid, only the RMD can be taken out without effecting Medicaid substantially. If the elder wants money for their own spending, to pay for their funeral expenses or even to pay for their own home, once that person is on Medicaid, any distribution from the IRA will create problems. When an elder needs Medicaid and their sole asset is an IRA, we frequently work to make a larger distribution the month before we need Medicaid in order to have some funds set aside. A good elder law attorney can help protect the assets and apply for Medicaid.
As we can see, an IRA would generally not need to be protected from nursing home spend down as long as the applicant is receiving their required minimum distributions. If you want to learn more about spending down assets from long-term care Medicaid, we have more information here.
There are no easy Medicaid applications and every situation is different, but if you or your loved one needs help to pay for their long-term care, we can help you. We can help you from anywhere in Florida as well.
People who read this may also want to read:
- Bypassing the Florida Medicaid Waitlist for Assisted Living Facilities
- My loved one is in the nursing home - is it too late to protect assets?
- Asset Protection and Florida Medicaid Planning
Download my Free Book!
If you want to learn more about Medicaid and asset protection in Florida, or are helping your aging loved one and need some help, please feel free to download our free book, Don't Lose Your Nest Egg to a Florida Nursing Home!
What is a designation of health care surrogate?
A designation of health care surrogate is an incapacity planning document naming your health care advocate. This, along with your living will, is known as an advance directive.
What is a designation of health care surrogate?
This is a form that designates your decisionmaker in the event you need help with your care, advocacy and end-of-life wishes. Some states refer to it as a power of attorney for health care.
Should I update my health care surrogate designation?
Yes, if you have not updated your documents since 2015. Florida law was recently changed to include new options relative to when your designation of health surrogate goes into effect. The pre-2015 law said that your surrogate designation only went into effect if a doctor declared you incompetent. The new law lets the surrogate designation go into effect when you sign it. This change makes it much easier to ensure you are getting the care you need and for your surrogate to speak with your doctor without a declaration of incapacity.
Example: Mom, age 86, develops a urinary tract infection that completely disrupts her cognition and function level. If mom had the post 2015 Florida Health Care Surrogate, her trusted daughter could immediately help make mom's health care decisions without the formal necessity of two doctors declaring her incompetent. In other words, the surrogate can act faster in helping make mom's decisions.
Can my power of attorney be different than my health care surrogate?
Yes. Your durable power of attorney is for financial and legal matters, while your health care surrogate designation is for health care decisions. You can name different people to assist you as you age, but you would certainly want to make sure they get along with each other and can work together.
Why should my health care surrogate designation be separate from my living will?
Our opinion is that your designation of health care surrogate should be in a separate written form from your living will. While every situation is different, we like the idea that an elderly person or someone with beginning stages of dementia may need to change their health care surrogate but may not have the desire to change their end-of-life wishes in their living will. This allows easier adjustments to estate planning documents and clarity for all.
Example: Mom is getting forgetful at age 92. Her trusted daughter has to move away and another daughter is to become the health care surrogate. Due to mom's mental decline, she can understand her health care surrogate change but she may not be able to understand (or even want to discuss) the nuances of her own end-of-life wishes in her living will. With separate documents, we can easily change the health care surrogate but not have to broach the very touchy subject of mom's end-of-life care wishes.
What else should I consider with health care surrogate designations?
Make sure your documents have alternate people who can help you. We have seen a number of incapacity planning documents lately without alternate agents. Please call me if you would like to create or update your existing health care surrogate designation. We also invite you to attend any of my free monthly estate planning seminars to learn more.
What if my loved on is incapacitated and did not create a health care surrogate?
See our section on Health Care Proxies in Florida for more information.
Learn more about Florida advance directives:
Where does my income go when I am on nursing home Medicaid?
Income rules for long-term care Medicaid have a number of moving parts that vary based upon marital status.
A single person on Medicaid in the nursing home must pay their countable income to the facility as part of his "patient's responsibility." In effect, the Medicaid applicant must pay their income to the facility as part of their co-pay, where Medicaid pays the rest of the funds for the resident's stay. The single applicant is allowed to keep $105/month as part of his "personal needs allowance." This allows the resident to buy personal items such as clothing and toiletries.
A married person in the nursing home has the same set of rules with one large qualification - the spouse at home may be able to keep some of the applicant's income as part of the community spouse's income allowance (CSIA). The community spouse may be able to siphon off some of the applicant's income based upon the community spouse's own income. An example of this is as follows:
Married nursing home resident with $2,000/month income applies for Medicaid. The spouse at home (the community spouse) only has income of $1,000/month. The spouse at home, as a minimum, may keep $1,030/month of the resident's income, at a minimum. This amount varies annually (see below for up-to-date numbers). This means that the nursing home resident can keep $105 per month as their personal needs allowance, paying $865/m to the nursing home as their patient's responsibility. ($2,000 minus $1030 minus $105 = $865).
If the applicant's gross income exceeds $2250/month, they will need a Qualifed Income Trust (QIT). The QIT generally does not effect where the income goes (i.e., to the nursing home/community spouse) but how it gets there.
We go into much greater detail about the Minimum Monthly Maintenance Allowance, the community spouse's income and the spousal spousal diversion on this page.
The Florida Medicaid financial requirements change frequently, with this post being the most up-to-date numbers for eligibility.
If your loved one is looking at long-term care or Medicaid in Florida, you are welcome to attend one of our free monthly seminars to learn more!
Do I need an attorney to apply for VA benefits for my elder?
The short answer is "maybe."
VA Pension benefits were created to assist with the veteran, and his or her surviving spouse's, extraordinary health care needs. Most people refer to this program as "aid and attendance", which is a specific benefit level for those needing the most help. We have more about veteran's benefits for the elderly here.
VA Pension benefits are "needs based", meaning the applicant must have only a certain amount of countable assets. The VA rules basically want the applicant to need the money for their healthcare but that the funds are not intended to provide an inheritance to the children. This means that the applicant is allowed countable asset limits based upon the applicant's age and money they are spending on their healthcare. For instance, a 65 year old veteran may be allowed $80,000 in countable assets but a 90 year old veteran applying for pension may only be allowed to have $30,000 in assets.
So the general rule is that an elder law attorney is not needed to apply for VA benefits if the assets are already within the applicable range. Here, we typically send people to their local Veterans Services office provided by most counties. If the applicant has assets over the limit, then an elder law attorney can help protect assets and only then apply for VA benefits. A good elder law attorney can protect assets with:
- legal gifting;
- asset restructuring;
- irrevocable trust planning;
- and more . . .
One key to all this planning is that whatever is done to protect assets must not interfere with potential Medicaid benefits in the future. We typically use VA Pension benefits to help with in-home and assisted living care while we generally look to Medicaid to pay for the nursing home.
What does this all mean? If your elder is a veteran or is the surviving spouse of a war-time veteran, you should see an accredited Veteran's Benefits attorney to help clarify your situation and if an attorney is needed.
We offer free seminars on Medicaid and VA planning if your elder may need help. Sign up here to attend!
Will I lose my home if I go to the nursing home on Medicaid?
The short answer is "no" with a few caveats.
First, your Florida homestead is not a countable asset for Medicaid purposes unless it is over $560,000 in assets. If you are married, there is no cap in the value to the homestead. This means that you are allowed to own a home if you are in the nursing home. Further, even if you stay in the nursing home for a long period of time, you will never lose your homestead. The family can hold onto the home for years, for instance, and it will not become a countable asset for Medicaid purposes. We have another page on the financial requirements for Florida Medicaid.
When you die, the state of Florida has a claim in your estate for what they paid to assist you with Medicaid. Importantly, your homestead property is not subject to your creditors, even the state of Florida, so "the state" does not take it, even upon your death!
As with all legal rules, there is a good bit of nuance here and there that can get an unprepared family in trouble, so you should always seek out legal advice to make sure your case would not have any problems. For instance, problems can occur if you:
- rent the homestead property
- own a co-operative share (such as Seminole Gardens)
- or the last will and testaments makes the homestead property be sold upon death.
If you want to learn more about your homestead and how it interacts with Medicaid, please download our free guide to protecting your Florida Homestead property.
Attend a Free Seminar!
We give free monthly seminars on estate planning and elder law - sign here here to attend!
Can I give $14,000 per year to a child to protect it from the nursing home?
No! We get this question all of the time. Many people are concerned about protecting their assets in the event they go into the nursing home. We all know that the nursing home is very expensive, often exceeding $9,000 per month. Of course, none of us ever want to go into the nursing home, but sometimes this is the only place that can provide the correct care for an aging loved one. But the $15,000 per year annual exclusion (2018) relates only to the Federal estate tax annual limit, not to the rules of Medicaid.
Basically, the $15,000 annual gift tax exclusion has nothing to do with the Medicaid 5 year lookback. The Florida rule is that you are not allowed to give away any money if you apply for Medicaid within 5 years of the last gift. This makes sense as the government wants to discourage asset protection or people intentionally impoverishing themselves. If you give money away, the gifting creates a transfer penalty. This blog post discusses calculating the Florida Medicaid transfer penalty.
If you want to protect your assets from the nursing home, there are some good ways to do it with good advice from a qualified elder law attorney. But gifting the assets away at $15,000 per year is generally not the way to do it. Giving assets away should be done in a lump sum in certain scenarios, and if you want to try to protect money from the nursing home, would generally be done to an irrevocable asset protection trust. If your mom or dad is already in the nursing home, there are legal ways to protect assets and also to do Medicaid spend down planning.
Importantly, you should seek help from a qualified elder law attorney if you want to protect assets. Sign up for a free seminar on Medicaid, VA and asset protection planning if you want to learn more.
You can read more about gifting and other aspects of Medicaid and the application process with the following articles:
- 7 Lies Regarding Florida Medicaid
- Can assets be protected even if my mother is already in the nursing home?
- Florida Long-Term Care Medicaid Requirements
Download my Free Book!
Please feel free to download my free book, Don't Lose Your Nest Egg to a Florida Nursing Home, which discussed Medicaid, long-term care, asset protection planning and more.
My Elder is on Medicaid - Can we Sell the Family Home?
If your loved one is in the nursing home or assisted living facility and is on long-term care Medicaid in Florida (i.e., nursing home or assisted living Medicaid), you may know that the applicant is allowed to own a homestead property if the property is less than $603,000 in value (2021). If the Medicaid recipient is single, then all of his or her income, minus $130/month (the personal needs allowance), must go to the facility as part of the patient's responsibility. This means that the Medicaid recipient may own the homestead property but that her or she cannot keep their income to actually pay for the home. The family will have to pay for the home costs if they want to keep it.
But what if there is no family member that is able or willing to pay for the home's upkeep (i.e., taxes, insurance, utilities, maintenance), or the family does not want to maintain the home? This is a very common question that we can help you address.
If the elder/family have decided to sell the homestead property, the proceeds would take the applicant off of Medicaid, only if they keep the funds. Funds retained by the elder will become countable assets for Medicaid purposes, which will eventually take the elder off Medicaid. Importantly, if the homestead property is sold, Medicaid will not take the proceeds away, but the proceeds will take him or her off of Medicaid unless the family acts quickly. This means that with an elder law attorney's assistance, the sales proceeds can be protected.
Once the home is sold and the proceeds come in, the Medicaid recipient must disclose the sale to Medicaid within 10 days as a change of circumstances. In order to keep Medicaid, the sales proceeds must be legally spent or protected by the end of the following month. At or before the sale of the home, this is when you will want to start your work with an elder law attorney. There are plenty of options in protecting the sales proceeds, such as:
- Medicaid spend down planning
- Personal Services Contract (legal way to pay family member for future help)
- Pooled Trust
- Income Producing Real Property (with attorney guidance)
- Paying off creditors/families for legally enforceable debt
Your options in protecting the home sale proceeds depends upon a number of issues, which should be addressed with a qualified elder law attorney before you sell your home. These issues include:
- Having a good estate plan in place, maybe with a revocable living trust;
- Having a good durable power of attorney if the elder is incompetent;
- Hiring the right attorney to help protect the assets and appropriately inform Medicaid
Importantly, you cannot gift the homestead property away within 5 years of a Medicaid application, so planning in advance is very important if you want to provide an inheritance for your children. If you want to protect your home for your children's inheritance before you go into the nursing home or assisted living facility, you may want to download a copy of our free guide to protecting your Florida homestead property.
What if one spouse is in the nursing home on Medicaid but there is a spouse at home?
The sale of the home would not effect Medicaid for the spouse in the nursing home with the caveat that the proceeds from the sale of the home should be placed into the community spouse's name. If an attorney assisted the family with a Medicaid application, it would be best to confirm this possible plan with that attorney.
Also, many people ask will Medicaid take the proceeds from the sale?
No - Medicaid will NOT take the proceeds from the sale of the home during your lifetime, but if you hold onto the proceeds, this will take you off of Medicaid. Basically, once the home is sold, the sales proceeds will take you over the asset cap (only $2,000 for a single person, for instance) and this can take you off of Medicaid. But, if the family/applicant acts to protect the proceeds, (i.e., spend down), the Medicaid applicant will not lose their Medicaid. When the home sales, for instance, the assets should have been legally spent/protected by the end of the month after the sale in order to ensure that Medicaid eligibility has not been disrupted. Also, the rules are different for a married couple under most circumstances.
Can we hold onto the home with Mom/Dad on Medicaid?
Yes. Medicaid will not take the home or force the home sell if the elder is in the nursing home or ALF and on Medicaid. No matter how long the elder is not living at home, the home will not lose its homestead. The main problem is that the family should not rent the home and all of the elder's income is going to the nursing home as part of their patient's responsibility, so the family is stuck with all of the costs to keep the home.
Finally, can DeLoach, Hofstra and Cavonis P.A. help us protect the proceeds?
Yes. It does not matter where you or your elder is located in Florida. Medicaid is a statewide system and we are glad to work with and help families from all over and out of state. We have helped hundreds of clients in situations just like this and we are glad to help you out now.
People who read this article may want to read the following:
- Can we protect assets with the elder already in the nursing home?
- My loved one just went to the nursing home - what will happen next?
My Elder Just Went to the Nursing Home - What Will Happen Next?
Part of our elder law practice involves helping people after a change of health, such as their parent or spouse having a medical downturn (stroke, fall, etc.) and going to the hospital. After a hospital stay, an elder is typically discharged to get rehabilitation in a skilled nursing facility. This is a very difficult and confusing time, which we call the “long-term care maze.” Navigating this maze is difficult because:
- You have likely never done this before;
- You and your family may not be prepared (can you ever?);
- People (friends, family, neighbors) come at you with bad advice on things you should be doing;
- You are concerned about Medicare, Medicaid, powers of attorney and more; and
- You do not know what the next steps are.
So now that your loved one went to the hospital and is in the nursing home getting rehab, what questions should you be looking at?
- How long will they be there?
- What type of health insurance do they have?
- How expensive will rehab be?
- How are they responding to rehabilitation?
- Are the proper incapacity and estate planning documents in place?
- Should we apply for Medicaid?
- Will VA benefits help?
- What will happen next?
Let’s discuss each of these questions in a little more detail:
How long will he/she be there?
Generally, the elder’s ability to stay in rehabilitation is based upon their ability to get stronger and improve. The purpose of rehabilitation at this point is to get as strong as they can or to prevent further decline. At some point, whether through a decline in health, dementia or just general improvement, the elder's health insurance (i.e., Medicare or HMO) will stop paying for their stay in the rehabilitation facility.
What type of health insurance do they have?
This is very important as it may tell us how long the elder will be able to stay in rehab. The elder will likely either have Medicare with a supplement or a Medicare replacement policy (HMO or PPO). Medicare will pay up to 100 days of rehab with a co-pay of $185.50/day (2021) for days 21-100. The co-pays may be picked up by the Medicare supplemental policy depending on the Medigap plan; plans A and B do not cover the skilled nursing co-pay. An HMO or PPO will have a similar payment program based upon the individual policy. Generally, Medicare is more generous in allowing rehab days than HMOs. Regardless of health insurance, it is extremely rare that the elder will stay the full 100 days in rehab covered by their health insurance, which means now is the time to start planning on where they will go next. Learn more about Medicare and Long-Term Care here.
How is the elder responding to rehabilitation?
Health insurance only pays to get the patient stronger and will not pay if he or she is not willing to participate, is too sick, or cannot participate in rehab due to dementia. The family must work with the facility to make sure the elder is participating and getting stronger. If the elder cannot or will not participate in their therapy, for instance, the health insurance will stop covering the rehabilitation.
How much will skilled nursing cost?
The cost for skilled nursing will vary based upon the health insurance, but it can get very expensive if you are not working with the business office and social worker to keep track of how the elder is progressing, the type of health insurance, and other factors. When the health insurance (i.e., Medicare or the HMO) stops paying, the cost for long-term nursing care is around $300-$350/day. When the health insurance stops paying for rehabilitation, this generally means that the elder is now in the skilled nursing facility for long-term care.
Are the proper incapacity and estate planning documents in place?
Now is definitely the time to make sure the elder has a last will and testament, durable power of attorney (done by an elder law attorney), designation of healthcare surrogate and living will. It may be time to update these documents if they are over 5 years old, or at least reviewed by an elder law attorney for accuracy, proper execution and relevance. Not all powers of attorney are created equal, for instance, and some do not allow the elder to protect their assets from the high cost of the nursing home.
Will VA benefits help?
A wartime veteran or his/her surviving spouse may be eligible for VA benefits when there are unreimbursed medical benefits. Please see our page on veteran's benefits and long-term care. At this point, it is likely that the VA will not help with nursing home/rehab costs, but it can never be too early to look for the veteran's military discharge paperwork, for instance. We can generally say that VA benefits will provide the most help when a veteran is trying to stay home or looking for help with the cost of an assisted living facility.
What will happen next?
When the rehabilitation portion ends, the elder has three choices:
- Go home if they are well enough;
- Go to an assisted living facility; or
- Stay in the nursing home (very expensive!).
The ability to do any one of these may be very difficult. Will they be safe at home? Will Medicaid pay for home care? Will Veterans benefits help? What is the right facility? All of these questions, and more, are a part of the long-term care maze.
Importantly, our law firm is here to help you navigate the long-term care maze. With our health advocate on staff, we help make sure the elder is in the right place, getting the right care and then taking the next steps, through the maze, together.
Should we apply for Medicaid?
This answer will depend on a number of factors such as where the elder goes next, their mental condition, their assets and their income. Now would be the time to meet with our law firm to make sure you are prepared to navigate the long-term care maze, protect assets, apply for benefits, and be prepared for will come next. Also, see the our list of Seven Lies Your Friends Tell You about Florida Medicaid. You may want to lean about effective spend down planning as well.
What about moving to assisted living?
If the elder has been declining or may not be safe to go home, the family may want to take advantage of the elder's time in the nursing home and apply for Medicaid. Please read our report on obtaining Florida Medicaid for the assisted living facility. Veteran's benefits, such as "Aid and Attendance" may also be helpful in paying for your elder's assisted living facility as well.
When your elder has experienced a downturn in health, our law firm can help you answer all of these questions, and more, to make sure your elder gets the proper care, the assets are protected, and the family gets the help they need in making the right decisions.
Can Our Law Firm Help?
We may be able to help, yes. Medicaid is a statewide program and we have helped families protect assets and apply for Medicaid across the state of Florida. We offer consultations to see what we can do. Importantly, the elder will need to participate or the family must already have a good durable power of attorney to protect assets.
Download our Free Book!
I have written a free book available for download that will address issues such as Medicare, placement issues, long-term care options, Medicaid and more. Don't Lose Your Nest Egg to a Florida Nursing Home is available for free download.
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