Gaid and Asset Protection - Medicaid Myth Busters

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1 The Law Office Of Jack W. Bolling A Professional Corporation 334 Union Street Milford, Michigan Telephone (248) Facsimile (248) MEDICAID MYTHS: A Grain of Truth, but Mostly Myth Many people want to know when Medicaid will cover nursing home costs, which often runs $75,000 a year or more! Not many people can pay those costs out of their regular income, so it doesn t take long to deplete your life savings. While long-term care insurance remains the best planning option for long-term care needs because of the freedom of choice and flexibility it offers, unfortunately many people are not insurable or the insurance is too expensive due to health, age, or fixed budgets. As a result, many people rely on advice from friends or relatives about how to get Medicaid to pay the cost for nursing home care. No two situations or fact patterns are alike. What worked for one family is not likely to work for you or your family and the law changes frequently. Unfortunately, few lawyers know this area of the law; it is a complicated area and should only be handled by an attorney who practices primarily or exclusively in the area of Medicaid law. Consult an elder law attorney about your individual situation. What follows are some common myths that if relied upon without seeking professional advice, can lead to erroneous decision making and may bring serious or even disastrous consequences. Often, these myths are partially correct, and are supplied by well meaning friends, relatives, or acquaintances but, usually they are just plain wrong! 1. Myth: I am not going to even apply for Medicaid because it is only for people that have no money or any other way to pay for nursing home care. We have considerable savings, and a house, and cars, and other things of value, so we won t be eligible. FACT: Don t be so sure! Many of the assets named above may not count against you for Medicaid qualification. Before you make the decision on your own or after hearing from a friend or relative that you can t even apply for Medicaid because you own too much, it is always a good idea to consult an attorney. As a rule most attorneys will offer their initial consultation at no charge anyway. Ultimately, you may be correct in your assessment of your inability to qualify for benefits, but what if you are wrong and you spend or give away your assets and you didn t have to? Often times, most, if not all, assets can be saved with proper planning! 2. Myth: I have to give away everything I own to get Medicaid. FACT: Basically, a person is permitted to own some property, and still be eligible for Medicaid. The trick comes in knowing what is countable and what is non-countable under the Medicaid rules. For example, an individual s homestead and automobile are exempt and not countable for Medicaid qualification purposes. In addition, certain types of prepaid burial contracts are non-countable. There are many other types of non-countable property. The bottom line is, you don t need to be completely without assets to be Medicaid eligible.

2 3. Myth: I can t give anything away and get Medicaid. FACT: The Medicaid rules provide that a person can be disqualified for giving away property in some cases. But, a lot depends on what is given away, to whom, and when; it s complicated! Some asset transfers are not penalized under the Medicaid rules. Consult with an elder law lawyer who knows the Medicaid rules and the law. 4. Myth: I have to wait 5 years after giving anything away to get Medicaid. FACT: The disqualification period isn t always for 5 years and sometimes there is no disqualification at all. True, there is a 5-year lookback for some asset transfers under the Medicaid rules. This means that the Medicaid agency will look back at all transfers of property, including sales for less than market value. However, the rules penalizing transfers do not apply to all transfers. See #2 above. A change made by the Deficit Reduction Act of 2005, applies penalties going forward from the date of application when a person is otherwise eligible for benefits. This new rule is much more severe and can result in much longer penalty periods. If you are contemplating making transfers, seek professional legal assistance beforehand! 5. Myth: I can keep all our marital property and my inherited property when my spouse gets Medicaid. FACT: When a married person applies for Medicaid, assets in either or both spouse s name are considered by the Medicaid agency, even if a pre or post-nuptial agreement is in place. However, some assets won t be countable and you may keep a sizable portion as an asset allowance if your spouse enters a nursing home. See #1 above. The non-nursing home spouse will not become destitute in order to provide the proper care for their loved one! 6. Myth: If I put my property into my spouse s name, I will be eligible for Medicaid. FACT: Assets are counted, regardless of which spouse s name they are in. However, the healthy spouse will be given several months to re-title assets from the name of the spouse that is in the nursing home, into the name of the healthy non-nursing home spouse. 7. Myth: Medicare will cover my nursing home bill. FACT: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. In general, there are 20 days of full coverage if you go into the nursing home after at least three days in the hospital, and you are getting skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare. After that, you will either pay out-of-pocket, or you will need to qualify and get Medicaid, unless you have private longterm care insurance. 8. Myth: If I enter a nursing home as a private pay resident, I must use up my assets before I can get Medicaid. FACT: You are not required to use your assets to private pay for the nursing home care. However, some nursing homes might try to make you believe that you do have to do this. They are paid less under the Medicaid program than they collect from private pay patients. People should seek advice from an elder law attorney to find out how they can become Medicaid eligible before having spent a significant part of their assets on the private pay rate. Current average monthly private pay in Michigan is $6,191.00/month!

3 9. Myth: I can only spend-down my assets on medical or nursing home bills. FACT: Nursing homes may tell you that you have to spend your savings on the private pay rate, before applying for Medicaid, but this is not true. In fact, it s against the law for them to tell you this! See # 7 above. Most nursing home administrators and finance persons, while probably well intentioned, are not attorneys and cannot offer legal advice. Again, it is always a good idea to consult an elder law attorney. 10. Myth: My power-of-attorney automatically has the power to take property out of my name, if I ever need Medicaid. FACT: Your best tool to be able to plan for Medicaid eligibility, should you ever need it, is to sign a comprehensive, general durable power of attorney that includes a gifting power. Your agent under the power of attorney will only be able to re-title your assets if your power of attorney contains a power to make gifts. Most powers of attorney do not contain gifting and/or self-dealing powers, and those that do are often limited in scope and do not provide the gifting power necessary. The court procedures to transfer assets without a gifting power can be expensive and time-consuming, and may not allow the type of asset protection that many people would like to accomplish. Without a gifting power your agent is generally limited to spending your money on your bills and selling your assets to generate cash, to pay your bills. A gifting power is recommended for people who want to become eligible for Medicaid and should not be limited to the non-countable assets allowed under that program. Some powers of attorney may contain gifting provisions, but limit such gifting to $10,000 to $12,000 per year. This figure is too limited to do effective Medicaid planning, and is related to a completely different type of legal issue. (See #12 below, about the federal gift and estate tax.) To protect you, you should require your agent under your power of attorney to consult with an attorney experienced in Medicaid law before making any gifts or asset transfers. 11. Myth: All property transfers will cause me to be disqualified from Medicaid. FACT: Not all transfers of property will cause a person to become ineligible for Medicaid. See # Myth: I can give away $10,000 per year under Medicaid rules without penalty. FACT: This is a rule under federal gift tax law, not under Medicaid law. (Actually, the amount has increased to $13,000, but many people are familiar with the $10,000 figure.) Right now, Michigan Medicaid law disqualifies a person from getting Medicaid for one month for every $6,362 given away, in most circumstances. This disqualification starts when an otherwise Medicaid eligible person makes application and is then applied on a forward basis for all divestments in the five years prior to the date of application. So, if my grandmother gives me $18,000 in May, she will be ineligible for approximately three months beginning with the date of her application, not the date of the gift as in the past, assuming she is otherwise eligible. 13. Myth: If my income exceeds a certain amount, I will not be eligible for Medicaid. FACT: This is only partially true. Michigan is one of a majority of states that does not have an income cap. However, from a practical standpoint income is not a barrier to Medicaid eligibility. When an individual s income exceeds the income cap, they simply need to create a special kind of trust called a Qualified Income Trust (also known as a Miller Trust in many states). Once created, the individual s income will flow through the trust and then be paid either to the spouse or to the nursing home, depending on the unique circumstances of each case.

4 There are two very important items to remember when it comes to income and Medicaid eligibility. First, if your income does exceed the income cap, you will not be eligible for Medicaid benefits until you establish and fund (deposit your income into) the Qualified Income Trust. So, if you apply for benefits in May, but don t establish and/or fund the trust until June, your Medicaid benefits will be denied without exception for the month of May, even if you were otherwise qualified for benefits. Second, it is important to understand who can create a Qualified Income Trust. The Medicaid Applicant, if competent, can obviously sign the trust. If the Applicant is not competent, his or her spouse can sign the trust on their behalf. However, if the Applicant is not competent and is not married, only an agent under a durable power of attorney (See #14, below) or the Court can create the trust. The Court process, as you can imagine, can be expensive and time-consuming 14. Myth: My power-of-attorney automatically has the power to create a Qualified Income Trust on my behalf, if I ever need Medicaid. FACT: Your agent under the durable power of attorney will only be able to create a Qualified Income Trust on your behalf if your power of attorney was either drafted before October 1995 or contains a specific grant of authority to create trusts in general or Qualified Income Trusts specifically. Most powers of attorney do not contain this authority. Although some powers of attorney may contain a general paragraph concerning trusts, read them carefully. Usually these provisions are limited to transferring your assets to an existing revocable trust or creating a revocable trust for your benefit. Neither of these provisions is sufficient to authorize the creation of a Qualified Income Trust. It is very important that you consult with an elder law attorney when you decide to create new or review your existing powers of attorney and estate plans 15. Myth: My income may have to be used to pay my spouse s nursing home bill. FACT: This is not true in Michigan or the majority of states. 16. Myth: All of my spouse s income must be used to pay the bill if my spouse is on Medicaid in a nursing home. FACT: The law allows you to keep a portion of your spouse s income if your income is below certain limits. In addition to this allowance, you may be entitled to a greater allowance if the cost of maintaining your home exceeds a certain amount or if a state hearing officer or a judge orders a greater allowance. 17. Myth: I can hide my assets and get eligible for Medicaid. FACT: Intentional misrepresentation in a Medicaid application is a crime and can be costly. The IRS shares any information concerning income or assets you have with the state agency that administers the Medicaid Program. You or whoever applied may have to pay Medicaid back to avoid prosecution. 18. Myth: Medicaid rules that applied to my neighbor when he went in a nursing home will also apply to me. FACT: Medicaid rules change FREQUENTLY, so don t count on the law that applied to your neighbor still applying to you. The Deficit Reduction Act of 2005 which went into effect February 8, 2006 made significant changes. Administrative rule making is still catching up. Also, there may have been facts about your neighbor s situation that you just don t know. It s best to have your personal situation analyzed by a competent elder law attorney.

5 19. Myth: If my spouse is in a nursing home or may need long-term care assistance, I should leave all my money to my kids so she isn t disqualified for benefits if I should die first. FACT: While many individuals and attorneys have used this method of planning, due to a change in the law that went into effect October 1, 2001 and February 8, 2006, special planning is now required when your spouse receives or may require long-term care benefits after your death. This is a very complicated and emerging area of the law, so it is very important to consult with a qualified elder law attorney as soon as possible if this issue applies to you. 20. Myth: The Medicaid application is only a few pages long, why do I need an attorney to help me fill it out? FACT: While it is true in Michigan that the actual application is about 6 pages long, the average Medicaid application and supporting documentation can be up to 1,000 pages! It is solely the burden of the applicant to prove their eligibility to the DHS. This requires extensive documentation of assets and their values at dates set down in the regulations. Most people are hard pressed to be able to determine what is actually required and then be able to collect and file this voluminous documentation. The average DHS caseworker has between active cases at any one time that they must deal with. While they are often very helpful and sympathetic, they simply cannot provide direction as to the myriad requirements due to their workload. Once an application is submitted it is either granted or rejected. We find that submitting a clear and complete, well documented, organized and easy to understand application to DHS with all required accompanying documentation, is the best way to get quick approval. This helps ensure your peace of mind in what are certainly already trying times. Copyright 2005 by Randy C. Bryan, J.D., a member of the Florida Bar, the Florida Bar Elder Law Committee, Academy of Florida Elder Law Attorneys, National Academy of Elder Law Attorneys and National Network of Estate Planning Attorneys. Amended with permission 2008 by the Law Office of to align with Michigan practice. This handout does not constitute legal advice, nor does it create an attorney-client relationship. Instead, it is prepared as a public service. It is designed only as a brief overview of selected Medicaid issues and is not intended to be legal advice or a substitute for legal advice. Changes in the law cannot be predicted, and statements in this handout are based solely on Michigan laws in force as of Summer 2008.

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