Elder Law Articles, Uncategorized

Elder Law Update – November 2008

May 20, 2010

I. When You Are In A Nursing Home, Who Pays? Estate Recovery Law More Aggressive Than Ever: Your mother is in a nursing home and has qualified for Medicaid. She has been able to keep her home because it is an exempt asset so long as she is living and “intends to return home.” But what happens to the house after she dies? What if it was your spouse on Medicaid and the state has paid over $70,000 in benefits? Will they attempt to recover benefits upon your spouse’s death? After a Medicaid recipient dies, the state has the right to recover any assets remaining in order to reimburse itself for Medicaid benefits paid out. This policy is called estate recovery. But while this policy may make sense, families are never happy to learn that the state may put a lien on your/your parent’s home after your spouse/parent dies. As budgets become tighter, states will begin to try to pursue assets from many different sources in order to make up for Medicaid benefits that the state has paid. In Illinois at one time the Department of Health Care and Family Services was authorized to claim against the estate of a deceased recipient and at one time also authorized a claim against the estate of the deceased recipient spouse. This claim against the deceased recipient spouse’s estate was declared invalid by the Illinois Supreme Court decision in Hines v. Department of Public Aid. Therefore for purposes of claims, the State of Illinois claims all of the real and personal property and other assets included within the deceased person’s estate, as that term is used in the probate act. Thus at the present time in Illinois, the claim can only be made against the deceased person’s probate estate and not for example, other assets such as his trust estate. However, frequently a transfer between spouses takes place and therefore the transfer of incoming assets from a nursing home resident to the resident’s community spouse are reviewed very carefully. In addition, the states are now placing liens on the Medicaid recipient’s home. This is a way for the state to secure a debt against the Medicaid recipient’s property,meaning that the property can not be sold or transferred until the lien is satisfied. Fortunately, the state will not place a lien on the home if the Medicaid recipient’s spouse, minor child, or disabled child is still living in the home. Nor will the state place a lien on the home if the Medicaid recipient’s doctor thinks he or she may be able to go home. There are still, in certain circumstances, perfectly legal ways of avoiding estate recovery. For example, if mom is the Medicaid recipient, and she has a child with a qualifying disability, she may be able to give her home to that child penalty free and avoid estate recovery at her death. Medicaid estate recovery rules are complicated and vary state-to-state. You should consult an Elder Law Attorney who practices in the area of Medicaid before planning with the intent of qualifying for Medicaid with the hopes of avoiding estate recovery. II. Our Firm Solves Nursing Home Residents’ No. 1 Complaint: What is the No. 1 complaint of today’s families who have a loved one in a nursing home? According to our clients, it is that there is no resource that truly addresses how family can pay the cost on of nursing home care. But now our Firm has helped reduce the hassles associated with qualifying for assistance to pay the cost of long-term care. In talking with our clients, it became very clear to me that they were searching for a way to find the right nursing home, get good care there, and pay for it without going broke. The problem was that everything was happening at a time in their life when events seemed to be a blur… and no one was stepping up to help seniors and their families deal with these issues. Knowledge taken from experts, doctors, and an elder law attorney empowers individuals and families to calmly face the situation. P.S. Please contact our office for more information. You can reach us at (847) 563-4887. We would be happy to assist you with all matters pertaining to your VA benefits planning, estate planning, Medicaid planning needs, and long term care and nursing home needs. P.S.S. On May 15, 2008, I conducted a workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847) 563-4887. Also, don’t miss our other workshop: “5 Step Plan – How to Get Medicaid Coverage for your Nursing Home Care… Without Selling your Home or Leaving your Family Without a Dime” set for the following dates. Please contact our office at (847) 563-4887 to register.

November 19, 2008 at 6:30 pm

December 10, 2008 at 4:00 pm

December 17, 2008 at 6:30 pm

Call (847) 292 1220 to make a reservation in our training room. •- You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

– Maturing Years – Will, Trust, Taxes, and Asset Protection

– Senior Years – Long Term Care, Medicaid, and Nursing Home Protection

– Post Death Years – Estate, Probate, and Trust Administration

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC The Estate & Trust, Elder and Asset Protection Law Firm Columbia Centre I 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.