LONG TERM CARE AND SPOUSAL SUPPORT

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1 LONG TERM CARE AND SPOUSAL SUPPORT 2014 A Guide for Nevada's Married Seniors and Their Families (Protecting the non-disabled spouse from impoverishment) By: HANCOCK AND CAVALLERA, PLLC Reno, Nevada (775)

2 HENRY W. CAVALLERA Mr. Cavallera is a graduate of the University of Colorado Law School and the University of Nevada. He is a member of the National Academy of Elder Law Attorneys, and maintains his law offices in Reno, Nevada. He is admitted to practice before the Courts of the State of Nevada, the United States Federal District Court for the District of Nevada, and the Ninth Circuit Court of Appeals. EMILY F. HANCOCK Ms. Hancock is a graduate of Seattle University School of Law and the University of Colorado. She joined Mr. Cavallera in private practice in Prior to that, she was the staff attorney and then directing attorney for the Washoe County Senior Law Project. 8 Copyright 2014 Henry W. Cavallera Hancock and Cavallera, PLLC 410 California Avenue, Suite 100 Reno, Nevada 89509

3 INTRODUCTION: Nursing home care is usually paid for by private funds, nursing home insurance or Medicaid. If you don't have long term care insurance, Medicaid may pay for your spouse's care. If you are married, you do not have to become impoverished if you have to place your spouse in a nursing home. You have the legal right to keep a reasonable amount of your marital income and savings for your ongoing support. This booklet is intended to explain to married persons with spouses in nursing homes, how Medicare and Medicaid pay for long term care and your rights to spousal support. 1. Medicaid is a medical assistance program funded by the federal and state governments to pay for basic health care for persons who meet certain "categorical" requirements such as age (over 65) or disability. 2. Seniors in Nevada who receive services as a patient in a skilled nursing facility, intermediate care facility, or hospital for 30 days or more and are determined by Medicaid to need this care, may qualify for Medicaid benefits, if they meet the income and resource qualifications. 3. Exempt Assets. Certain items that you own are not counted in determining your spouse=s eligibility for Medicaid. Among these are your residence, one vehicle, certain burial funds, your household goods and a family business. 4. There are specific rules that protect the spouse at home if the other spouse is going into a

4 nursing home. These rules are called The Spousal Impoverishment rules which may make it unnecessary to "spend down" your savings (bank accounts, stocks, bonds, etc.). The spouse at home is allowed to keep at least one-half of all savings owned by either member of the couple as of the date the institutionalized spouse entered a nursing facility. The spouse at home is allowed to keep a minimum (y2014) of $23, in savings, even if that is more than half. A court may increase the amount of savings that the at home spouse can keep to a sum in excess of one-half of the resources. For instance, if your savings are $117,240.00, or less, a court will allow you to keep all of this amount. If the assets won't generate enough interest income for the at-home spouse, the court can award you part of the institutionalized spouse's income. As the at-home spouse, you may receive up to $2, of your marital income for your support. If you are the athome spouse and your spouse is going into a nursing home the elder law attorneys at HANCOCK & CAVALLERA, PLLC, can analyze your case to determine what approach you should take to protect your assets for your ongoing support. Any savings not needed for the at home spouse's support, can be used to pay off debts, including the mortgage on the residence. Any other savings should be used for a disabled spouse=s care. 5. Generally, your institutionalized spouse's countable gross income as an institutionalized person cannot exceed $2, per month for he or she to receive Medicaid unless further analysis is made. See paragraph 6 for a discussion to the exception to this rule. 6. If the institutionalized person's Social Security check, pension or other countable income exceeds $2, gross monthly, they would be over the individual income limit for an

5 institutionalized person and would not be eligible for Nevada Medicaid unless you or someone else went to court on his or her behalf and asked a court to put his or her income into a Qualified Income Trust. If this is done, your disabled spouse=s income would be paid out of the trust at a rate that would qualify him or her for Medicaid. Also, if your institutionalized spouse=s income and your income added together does not exceed $4, per month, your spouse will qualify from an income prospective because your income could be divided into two (2) equal shares for eligibility purposes. 7. For the nursing home spouse a $2, resource limit applies. This means your spouse in the nursing home can have this much money in savings. 8. As stated above, certain resources do not count against the resource reserve limit. Nevada Medicaid specifically excludes resources such as: * The family home, as long as the individual intends to return home or as long as a spouse or dependent relative is living in the home. * One motor vehicle regardless of value. * A burial policy or funds set aside for burial up to $1, in value. The funds set aside for burial can be a life insurance policy or other asset like a special bank account. Applicants for Medicaid should be sure to indicate on the application form if their Life Insurance, bank account, etc. is an asset that they have set aside for burial. * Interest earned on money set aside for burial is also excluded. Once Medicaid eligibility is established, the burial fund will be excluded even if the added

6 interest exceeds $1, Money should not be withdrawn from the burial account (except to pay for the burial costs of the person for whom the account is established.) * A family business is generally exempt and is not counted in determining your spouse=s eligibility for Medicaid. This is particularly important for ranching families. 9. The rules set forth herein also apply to determine if a spouse is eligible for services at home, pursuant to the community home based initiative program. This program is run by the State Department of Aging Services. 10. If your spouse should need nursing home or other long-term care, a Atransfer of assets" rule may be applied by the Medicaid Program in determining eligibility. The rule presumes that any transfer of assets which occurs within 60 months prior to a Medicaid application was done to become eligible for Medicaid. This means that your application for Medicaid will be denied and you might remain ineligible for a lengthy period of time up to five years after a Medicaid application is filed and a denial is made because of the gifts. The gifting rules are very complex and a detailed discussion is beyond the scope of this pamphlet. However, special rules apply to transfers of the family home which are summarized in section Transfers of assets for reasons other than to qualify for Medicaid will not result in a

7 penalty. 12. Transfers of a family home are subject to special Medicaid rules. Transfers of homes will no longer be permitted without the transfer of assets penalty, except as provided below. Home transfers are allowed when the transfer is made to: * The patient=s spouse; or * A blind or disabled child of any age; or * A minor child or minor children; or * A sibling with an equity interest who lived in the home one year prior to the patient's admission to a medical or nursing facility; or * A child who resided in the home for two years prior to the patient's admission and who provided care to the patient, which permitted him or her to reside at home. A spouse at home who receives the title to the family home from the spouse in the nursing home is not allowed to transfer the asset to anyone else except a disabled or dependent child. The rule provides that if the spouse at home transfers property received from the nursing home spouse, the penalty for transfer of assets will be applied to the person in the nursing home. The spouse at home should not give away any property. 13. Medicare is a two-part health insurance program for Social Security and Railroad Retirement recipients administered by the Social Security Administration. It is designed

8 to help meet the hospital and medical costs of elderly Social Security and Railroad Retirement beneficiaries (age 65 or older) and some disabled persons under 65, regardless of income and resource levels. Medicare benefits to pay for nursing home care are limited to persons needing skilled care. Medicare will pay for 100% of the first 20 days of skilled nursing care and all but $ for days 21 through 100. After day 100 the costs of care must be paid for privately if the institutionalized person is not receiving some form of government assistance, or private long term care insurance. Many persons don't need skilled care but need full time custodial care. Medicare does not pay for custodial care. 14. Some Medicare supplemental insurance policies pay the co-payment for Medicare (currently $ per day) for the 21 st through 100 th day of skilled care. 15. If Medicare or Medicaid will not pay for your spouse=s nursing home care some private insurance for long term care now covers custodial nursing home care. Typically, if Medicare will not pay, neither will most Medicare supplemental insurance policies. 16. The Medicaid Program has a right to file a claim against the estate of any Medicaid recipient who was 55 years of age or older at the time Medicaid was received. The Medicaid Program will not be able to enforce such a claim during the life of a surviving spouse, a dependent child or a disabled child of any age. There is a hardship exemption which will allow the Medicaid Program to waive recovery against the estate in some cases. Currently, the Medicaid Program cannot recover its cost of care of an

9 institutionalized spouse from the estate of the at-home spouse who survives an institutionalized spouse that received Medicaid benefits. Remember, Medicaid can only recover from an institutionalized married person=s estate after that person=s spouse is also deceased. Hence, Medicaid cannot and will not seek to force a surviving spouse from his or her home because the other spouse received Medicaid benefits. The estate recovery is not made upon the at home spouse=s share of the estate. Medicaid may file a lien on the deceased Medicaid beneficiary=s share, if any, of the family residence. 17. The best solution for long term care planning is to obtain legal advice as soon as the potentially disabling condition is diagnosed. Persons trying to pre-plan before there is a disability should obtain legal advice and consider long term care insurance. 18. Nursing home costs are tax deductible if the principal reason the individual is in the nursing home is because the person is Achronically and services are necessary for diagnostic, preventative, therapeutic, treating, mitigating, rehabilitative, maintenance and personal care services. 19. Those couples approaching advanced age (70 and over) should have their estate plans reviewed to minimize the exposure of their estate to pay for the nursing home costs of the surviving spouse. There are planning options that may reduce the exposure of your marital estate to nursing home costs. 20. Citizen Alert. Annuities generally are treated as resources by Medicaid except in limited

10 circumstances. You should not buy an annuity because someone tells you it will protect your assets without competent legal advice. The annuity rules for Medicaid are complex and the usefulness of annuities depends on other financial aspects of the marital estate. 21. The information contained herein is not a substitute for legal advice in a specific situation. Further, the rules set forth herein are subject to revision.

11 THE LAW FIRM OF HANCOCK AND CAVALLERA, PLLC The practice focuses on meeting the legal needs of Nevadans fifty-five years of age and older. The attorneys, Henry W. Cavallera and Emily F. Hancock, help persons and their families with long term care planning, including all aspects of Medicaid and Medicaid spousal support, qualified income trusts, and special needs trusts. In addition, the practice focuses on guardianships, and estate planning and estate administration. The office serves all Northern Nevada Communities. 410 California Avenue, Suite 100 Reno, NV (775)

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