Changes in Home Care Eligibility - Trust and Estate Planning Law Office

3 Important Elder Law Updates in 2021

When it comes to certain aspects of Elder Law, such as Medicaid or Long Term Care Planning and Asset Protection, laws are constantly changing. For that reason, it’s important to stay updated on any recent elder laws, as they may impact you. Read about 3 important elder law updates in 2021 that could impact you.

3 Important Elder Law Updates in 2021:

Medicaid Lookback Period: Lookback periods vary from state to state. In New York, the law requires a 5 year lookback period on Medicaid Nursing Home Benefits. This means that transfers that were done during this period are reviewed by Medicaid and a penalty is measured if the asset transfer (or “gifts”) in that period was for less than the full consideration. The transfer rate in New York is $13,037, so you should consider this if you are planning on applying for Medicaid or if you already have Medicaid and are making asset transfers. The Governor has also redesigned the program to implement a 30-month look-back period on any uncompensated transfers for home care or community Medicaid that was supposed to go into effect on April 1, 2021, but has been pushed back to July 1, 2021. Once in effect, those who plan to apply for Medicaid and who already have Medicaid after July 1, 2021, must disclose all transfers going back to October 1, 2020. There are exemptions to this update though. If the transfer is or was made to a spouse or a disabled or blind child, Medicaid does not impose a penalty. Additionally, real estate transfers to a spouse, disabled or blind child, a family caretaker that resides in the home and cares for the loved one for at least 2 years, and a sibling with an equity interest in the estate that resides at the elderly’s home for at least 1 year have been expanded to be exempt from receiving a penalty under the new Elder Laws in New York. When considering applying for Medicaid Nursing Home benefits you should take into account that your transfers prior to and after you apply for coverage matter in regards to your eligibility.
Stimulus Check doesn’t impact Medicaid Eligibility: When assessing your eligibility for Medicaid, the COVID-19 pandemic may cross your mind and specifically the stimulus checks that were given out by the federal government. The three rounds of stimulus payments that were issued from March 2020-April 2021 have been considered to be exempt from Medicaid, SSI, and other need-based benefits. This means that the payments received from the stimulus checks do not count as countable income, and will not compromise your eligibility for any of the benefits named above. This new update gives those who plan to apply for Medicaid or who have Medicaid peace of mind that these payments will not affect their eligibility for their healthcare plan and their loved ones will continue to receive benefits without any issues.
The New Power of Attorney Form: A Power of Attorney (POA) is an important document you should have especially if you are a senior. This document allows you to appoint an individual to make decisions for you when you are unable to do so yourself. The Healthcare Power of Attorney deals with any and all medical decisions that will be made on your behalf by a representative of your choosing in the case that you become incapacitated. This form that was put into effect in 2010 in New York, was known to be complicated and long. Governor Cuomo has recently issued a new form of this Power of Attorney that is simpler and shorter. This new form will go into effect in June 2021 and will not impact those who already signed a power of attorney. This new POA document is different from the one currently in effect. The difference in the new Power of Attorney form is that it’s shorter in length and is simpler in the language that it uses, making it easier for people to understand. An individual who is physically incapable of signing, but is mentally in the right state of mind can appoint a trusted individual to sign the Power of Attorney on their behalf. Banks and Financial institutions that refuse to accept this new version of the Power of Attorney can face penalties and could be subject to legal fees. This new law is great for those who are looking to make decisions on behalf of their loved ones and provide them with the best care possible. If your concerned that your Healthcare Power of Attorney is not up to date, speak with an Elder Law Attorney.

What is Elder Law?

Elder Law is an area of law that relates to issues relevant to older people and their family members and loved ones. Elder law attorneys act as advocates for their elderly clients and can handle a variety of legal matters that affect elderly or disabled people. Some of these issues are related to long-term care planning, guardianship, retirement, estate planning, and Medicaid Planning, along with other important matters. Additionally, an experienced New York City Elder Care Attorney will be able to handle the sensitive and emotional needs of an elderly person, and therefore address complicated situations that concern their clients.

How Can an Elder Law Attorney Help?

An Elder Law attorney is informed of all current updates to the laws on Medicaid eligibility and other aspects of Elder Law. Unfortunately, Medicaid laws constantly change as well as the requirements of your state so it makes the process of finding the best plan for your loved one even harder. An Elder Law attorney will help simplify this process for you and advise you of all updates to the law creating less problems on this journey of Medicaid planning. Hiring an Elder Law attorney will ensure that you're planning for your loved one’s care in a way that corresponds with the laws imposed by the state in which you reside, while also satisfying their wishes.

For further important updates on the Elder Laws in 2021 please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in receiving medical coverage to cover the cost of nursing home care and help with any of your Elder law needs.

How Can An Elder Law Attorney Help Me Get Approved for Medicaid?

There are many ways an elder care attorney can help you get approved for Medicaid. Medicaid is a joint federal and state program that covers medical payments, such as hospital care, physician services, and long-term care in nursing homes for individuals with financial need. Individuals of low socio-economic class are unable to cover the costs of medical care out of pocket and therefore rely on Medicaid for aid. Applying for Medicaid is a very difficult and lengthy process, as the questions being asked within the application have great depth and implications for your future. The foundation system responsible for asking the questions that define your eligibility for Medicaid purposely selects specific diction and word choice which may make it challenging for elderly individuals to effectively answer the questions. Answering these questions incorrectly or inaccurately could place your potential coverage in jeopardy, meaning you may not qualify for the aid you need to cover your medical costs. Considering that these questions are the main defining factor when it comes to obtaining Medicaid coverage, family members should seek guidance from an experienced Elder Law Attorney to guide them through this imperative process. The attorney is highly experienced and familiar with New York state’s rules when it comes to long-term care planning and receiving government benefits.The Elder Care Attorney will use her experience in the field to devise the most effective plan in assisting the family by selecting strategies that align with the family’s personal and financial circumstances.

Differences Between Medicaid and Medicare:

Medicaid and Medicare are often confused, as both provide medical coverage to individual applicants. However, there is a grand difference between both programs based on the qualifications and the services provided. Medicaid is directly managed by the state and federal government, which correlates with an individual's income to calculate their estimated extent of need. Medicaid covers low-income individual’s medical care regardless of their age. Medicare, on the contrary, typically applies to individuals over the age of 65, and in some cases covers the costs of medical bills for individuals with disabilities at any age. Medicare patients pay part of the costs through deductibles for hospital coverage and small monthly premiums for non-hospital coverage. Expenses that are not covered by Medicare will have to be paid out of pocket or with the help of a private long-term care insurance policy.

Benefits of Medicaid Coverage:

New York Medicaid benefits pertain to regular examinations, immunizations, and doctor visits. Coverage also extends to medical supplies and equipment, lab exams, X-rays, dental, and vision. Medicaid is beneficial in regards to covering nursing home service payments, hospital stays, emergencies, and prescriptions. Medicaid coverage is extremely helpful for individuals who cannot afford to pay the costs of their medical healthcare independently. This is a great stress reliever and minimizes the pressure on loved ones who worry about paying for their own care or their family members’ care. New York state Medicaid covers essential dental services that are medically necessary, such as extractions to prevent disease. Medicaid will provide a reimbursement for eye examinations every two years and glasses when medically necessary. Medicaid may also cover the cost of contact lenses with prior authorization. Medicaid guarantees that medical professionals will select the most cost effective options when prescribing a patient’s medication, which in most cases is simply the generic brand. Medicaid may also provide reimbursements for over the counter products. New York Medicaid also provides emergency and non-emergency transportation services to beneficiaries.

Medicaid Eligibility Requirements:

Medicaid eligibility depends on your household size and your earned income. An individual with assets and income that exceed the designated Medicaid requirements will not be eligible for coverage. This means that individuals entering nursing homes will be considered private pay residents and must continue to spend down until they become eligible for Medicaid coverage. There is a five year lookback period involved regarding any gift given to heirs,which may result in a Medicaid penalty or completely prevent you from meeting the qualifications of Medicaid coverage. This is established to prevent Medicaid applicants from transferring their large assets to their children and then claiming they have a financial need for coverage. The lookback period is exactly 60 months, which is five years from your application date. The applicant’s home is not considered as assets, but the estate pay be billed for services provided after the individual passes away. Vehicles, household contents, prepaid burial funds, and an IRA or 401(k) plan are all excluded from the asset calculation process that determines if you are eligible for Medicaid coverage. If the applicant is married, then both spouses’ income will be considered in the effort to grant coverage, even if only one spouse is in need of Medicaid. A spouse that will continue to reside in the home when the other spouse enters nursing home care will be able to keep half of the assets with some additional income for support services, as long as this amount meets the maximum quota.

Elder Law Attorney Assistance in Applying for Medicaid:

An experienced and esteemed Elder Law Attorney can assist you in the process of applying for Medicaid coverage in a variety of methods. One such method is guaranteed avoidance of potential penalties that you may have been unaware of had you decided to file for Medicaid without the help of a lawyer. There are numerous questions that seek to identify if the applicant has made any disqualifying transfers that would result in a penalty. The most common question that correlates to the Medicaid penalty prospect is the prompt asking if the applicant has made any gifts or transfers for less than fair market value within the last 5 years. If you hire an Elder Care Attorney, the lawyer will ensure that you do not have any penalties that would prevent you from obtaining the Medicaid benefits you deserve. The attorney will be well aware of any of the exceptions that will prevent you from earning a penalty and will therefore assist you in the process of qualifying for Medicaid. Hiring an Elder Care Attorney enhances the probability that your application is approved, therefore increasing your chances of obtaining Medicaid coverage. Additionally, another benefit to hiring an Elder Care Attorney to assist in filing for Medicaid coverage is the establishment of effective spend down plans. In order to qualify for Medicaid many married couples must participate in the Spend-Down process, which pertains to the prospects of saving assets when only one spouse needs Medicaid. The purpose of this process is to ensure that the individual in need of long-term care receives the aid they need, while also guaranteeing that their spouse has the financial means of remaining in their home and covering the cost of all their living expenses. An Elder Care Attorney may assist in creating a personal care agreement that enables the senior to provide monetary compensation towards their family caregiver, while also participating in the Spend-Down process. Additionally, the attorney can aid in renaming bank accounts and real estate titles in the effort to enhance the applicant’s eligibility for Medicaid. The attorney will use her experience in the field to answer any inquiries you may have regarding the application process and determining whether you and your loved ones qualify for coverage.

For further Medicaid eligibility information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively complete the Medicaid Application.

Top 5 Strategies for Protecting Your Assets From Medicaid

Medicaid is a means-tested program that conditionally accepts applicants based on their income and current assets. According to Medicaid regulations, individuals must have less than $2,000 to qualify for coverage. Applying for Medicaid is quite a complex process, as the questions being asked within the application have great depth and implications for your future. The foundational system responsible for asking the questions that define your eligibility for Medicaid purposely selects specific diction and word choice which may make it challenging for elderly individuals to effectively answer the questions. Considering that these questions are the main defining factor when it comes to obtaining Medicaid coverage, family members should seek guidance from an experienced Elder Law Attorney to guide them through this imperative process. The attorney is quite familiar with your state’s rules when it comes to long-term care planning and receiving government benefits. An Elder Care Attorney will use her experience in the field to devise the most effective plan in assisting the family by selecting strategies that align with the family’s personal and financial circumstances. Below are the top 5 strategies suggested by an Elder Law Attorney regarding ways of protecting your assets from Medicaid.

1. Income Trusts

Income Trusts serve the purpose of protecting your assets and keeping your monetary income safe. This trust aids in maintaining the income limit set for all Medicaid applicants. Income Trusts are beneficial towards those applicants that exceed the qualifying amount. These trusts give the applicant an opportunity to designate a sub quantity of their income to a specific trust in order to refrain from exceeding the standard acceptable quantity. The Qualified Income Trusts are irrevocable meaning they cannot be changed or revoked. They serve as holding areas for the applicant’s excess income and protect this income from being taken by Medicaid. In states that allow applicants to spend down their excess income, these trusts are less effective, yet can still be utilized based on the applicant’s preference. In order to qualify for Medicaid many married couples must participate in the Spend-Down process, which pertains to the prospects of saving assets when only one spouse needs Medicaid. The purpose of this process is to ensure that the individual in need of long-term care receives the aid they need, while also guaranteeing that their spouse has the financial means of remaining in their home and covering the cost of all their living expenses. An Elder Care Attorney can assist you in establishing an Income Trust and answering any of your questions regarding the trust.

2. Asset Protection Trust

An Asset Protection Trust is a great way to preserve your assets when applying for Medicaid, as it allows you to maintain your wealth while still receiving coverage. This is helpful because a Medicaid applicant is only eligible for convergence if they meet the specified quantity of assets held within their account. Many individuals fall into the assumption that the best way to remove the additional assets that prevent them from getting Medicaid coverage is to transfer the assets to family members. This approach, however, is extremely flawed and risky because it often results in a Medicaid penalty. Incurring a penalty prevents you from receiving coverage for a specified period of time. A trust allows you to disperse these assets to the family members you had in mind at the time of creating a trust. The beneficiaries will not be subject to the payment of capital gains tax based on the increase in quantitative value your assets have accrued over time. It is important to note that transfers to a trust are still subject to the Medicaid Lookback period,which tends to include the last five years of your assets. This strategy is extremely effective when it comes to protecting your assets fromMedicaid, while still receiving the coverage you are in need of. An Elder Care Attorney can guide you through the process of creating an Asset Protection Trust based on your personalized extent of assets.

3. Caregiver Agreement

A caregiver agreement is beneficial to individuals who require additional services that will not be included within the typical Medicaid coverage. This option is great for individuals who would prefer to be cared for by a family member or a trusted close friend. You would not only be cared for by an individual you already know and have a close relationship with, but you would also be benefitting the caregiver for their service. The caregiver will be paid for their duty in caring for you and you will receive the best care possible. In most cases the caregiver would be paid for their services in advance under a contract that defines the services provided and the hours being worked. In the case that the patient passes away all of the unearned funds must be paid to Medicaid in correlation to the amount that Medicaid paid for the patient’s care. A Caregiver Agreement can be the best option for numerous individuals who do not wish to leave home and go into the care of a nursing home, as they would still be able to maintain their full Medicaid coverage. An Elder Care Attorney can help you make the decision in selecting a caregiver you trust to take care of you.

4. Medicaid Compliant Annuities and Promissory Notes

In many cases, individuals require urgent long-term care services, however they have recently conducted a transfer of assets or are still in possession of the assets that limit the income cap they require to qualify for Medicaid coverage. As of now, there is no possible method of removing these assets in time to qualify for coverage because any movement of the assets will result in a Medicaid penalty. The only options left to qualify for coverage under such short notice and with exceeding assets present would be to write an annuity or promissory note. This would serve as an insurance product that would payout the income. First, you would make an investment into the annuity. Then, the insurance provider would return your income by using a constant stream of income approach. The annuity has specific qualifications to ensure that Medicaid will approve of the strategy. The annuity must be fixed with all monthly payments being the same, while also being irrevocable. The annuity is unassignable meaning it cannot be transferred or sold to another individual. The payments on the annuity must be immediate in order to qualify for coverage. An Elder Care Attorney can further explain this strategy in describing the best course of action in selecting an annuity with qualifications that would make it possible for you to still qualify for Medicaid.

5. Spousal Transfers and Spousal Refusal

According to current Medicaid laws, transfers may occur between spouses without being subject to the five year look-back period. The assets who are under the name of the spouse in need of care should be transferred to the name of the spouse who doesn't require care. The spouse who is not in need of care is typically referred to as the community spouse. With the presence of spousal refusal, the community spouse may refuse to provide necessary support to the spouse in need of care. If this is the case, then the spouse who is in need of care will immediately be provided Medicaid services to ensure that they are provided with all the care necessary. Medicaid may then require the community spouse to make contributions even though that spouse initially refused to provide the necessary support. The community spouse will still receive a benefit because the reimbursements to Medicaid will be at specified discounted rates. Spousal refusal is present in New York, however it may not be present in other states. Seeking legal advice from an Elder Care Attorney puts you and your loved ones in a good position to protect your assets from Medicaid.

Reasoning Behind Asset Protection:

Asset protection from Medicaid is extremely important in the long run in regards to receiving long term coverage. Without taking the proper steps now to protect your assets, you may be unable to receive long term coverage, such as nursing home care. Long term care insurance provides coverage for nursing home care and at home coverage for individuals ages 65 and older with chronic conditions. There is nothing worse than running out of money when you need it most, so by taking the necessary steps to protect your assets today, you will avoid this problem when it becomes time to consider long term care. An Elder Care Attorney will guide you through the process of following all of the strategies above to save and protect your assets from Medicaid.

For further Medicaid eligibility information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively protect your assets from Medicaid.

Top 5 Strategies for Protecting Your Assets From A Nursing Home

Coming to terms with the prospects of your loved ones aging is not a simple and enjoyable task, especially when you are the one responsible for making the most efficient medical and financial decisions for them. Not only are you tasked with these complex decisions, but you are also responsible for finding the best ways to protect your loved one’s assets from a nursing home. In order to make this process simpler and give you more time to spend time with loved ones, rather than worrying about legalities, an Elder Care Attorney can assist in the procedure. Around 73 percent of individuals over the age of 65 will need long-term care, thus is it quite logical to make decisions concerning this care prior to the individual reaching the specified age. Participating in the long-term care planning process early will give you the opportunity to consider which facility will best cater to your loved one’s individual needs. This will also give you the opportunity to plan your desired payment method for all of the medical and care expenses. There are various procedural strategies that can be followed to guarantee that your assets are being protected from a nursing home.

Strategy #1: Asset Protection Trusts

An Asset Protection Trust is a great way to preserve your assets when applying for Medicaid, as it allows you to maintain your wealth while still receiving coverage. This is helpful because a Medicaid applicant is only eligible for convergence if they meet the specified quantity of assets held within their account. Many individuals fall into the assumption that the best way to remove the additional assets that prevent them from getting Medicaid coverage is to transfer the assets to family members. This approach, however, is extremely flawed and risky because it often results in a Medicaid penalty. Incurring a penalty prevents you from receiving coverage for a specified period of time. A trust allows you to disperse these assets to the family members you had in mind at the time of creating a trust. The beneficiaries will not be subject to the payment if capital gains tax based on the increase in quantitative value your assets have accrued over time. It is important to note that transfers to a trust are still subject to the Medicaid Lookback period,which tends to include the last five years of your assets. This strategy is extremely effective when it comes to protecting your assets from a nursing home, while still receiving the coverage you are in need of.

Strategy #2: Income Trusts

Similarly to the Asset Protection Trusts, Income Trusts serve the purpose of protecting your assets and keeping your monetary income safe. This trust aids in maintaining the income limit set for all Medicaid applicants. Qualified Income Trusts and Pooled Income Trusts are beneficial towards those applicants that exceed the qualifying amount. These trusts give the applicant an opportunity to designate a sub quantity of their income to a specific trust in order to refrain from exceeding the standard acceptable quantity. The Qualified Income Trusts are irrevocable meaning they cannot be changed or removed. They serve as holding areas for the applicant’s excess income and protect this income from being taken by nursing homes. In states that allow applicants to spend down their excess income, these trusts are less effective, yet can still be utilized based on the applicant’s preference. In order to qualify for Medicaid many married couples must participate in the Spend-Down process, which pertains to the prospects of saving assets when only one spouse needs Medicaid. The purpose of this process is to ensure that the individual in need of long-term care receives the aid they need, while also guaranteeing that their spouse has the financial means of remaining in their home and covering the cost of all their living expenses.Pooled income trusts also happen to be irrevocable, however they specifically aid disabled applicants. The excess income is pooled together and is then cared for by a non-profit organization. This organization takes on the role as the trustee, meaning they are responsible for disbursing the funds.

Strategy #3: Medicaid Compliant Annuities and Promissory Notes

Oftentimes individuals require urgent long-term care services, however they have recently conducted a transfer of assets or are still in possession of the assets that limit the income cap they require to qualify for Medicaid coverage. There is no way to remove these assets in time to qualify for coverage because any movement of the assets will result in a Medicaid penalty.

The only options left to qualify for coverage under such short notice and with exceeding assets present would be to write an annuity or promissory note. This would serve as an insurance product that would payout the income. First, you would make an investment into the annuity. Then, the insurance provider would return your income by using a constant stream of income approach. The annuity has specific qualifications to ensure that Medicaid will approve of the strategy. The annuity must be fixed with all monthly payments being the same, while also being irrevocable. The annuity is unassignable meaning it cannot be transferred or sold to another individual. The payments on the annuity must be immediate in order to qualify for coverage.

Strategy #4: A Caregiver Agreement

A care agreement is beneficial to individuals who require additional services that will not be included within the mMedicaid coverage in a nursing home. This option is great for individuals who would prefer to be cared for by a family member or a trusted close friend. You would not only be cared for by an individual you already know and have a close relationship with, but you would also be benefitting the caregiver for their service. The caregiver will be paid for their duty in caring for you and you will receive the best care possible. In most cases the caregiver would be paid for their services in advance under a contract that defines the services provided and the hours being worked. In the case that the patient passes away all of the unearned funds must be paid to Medicaid in correlation to the amount that Medicaid paid for the patient’s care. A Caregiver Agreement can be the best option for numerous individuals who do not wish to leave home and go into the care of a nursing home.

Strategy #5: Spousal Transfers and Spousal Refusal

According to Medicaid laws transfers may occur between spouses without being subject to the five year look-back period. The assets who are under the name of the spouse in need of care should be transferred to the name of the spouse who doesn't require care. The spouse who is not in need of care is typically referred to as the community spouse. With the presence of spousal refusal, the community spouse may refuse to provide necessary support to the spouse in need of care. If this is the case, then the spouse who is in need of care will immediately be provided Medicaid services to ensure that they are provided with all the care necessary. Medicaid may then require the community spouse to make contributions even though that spouse initially refused to provide the necessary support. The community spouse will still receive a benefit because the reimbursements to Medicaid will be at specified discounted rates. Spousal refusal is present in New York and Florida, however it may not be present in other states.

With the aid of an Elder Care Attorney, nursing homes and other senior housing options become affordable even for individuals who did not allocate money specifically for elder care. Government programs can provide assistance to elderly in financial need of aid. This government aid will come in the form of Social Security, Veteran’s Benefits, Medicaid, and various state programs. Additionally, there are insurance coverage options for those who do not qualify for government aid. These insurance options pertain to Medicare, Medicare Supplement programs,and Short-Term Care Insurance. There are potentially private assistance options, such as certain nonprofits and foundations that aid elderly in need of care. Once you have a senior housing option in mind, it is a great time to start thinking about the medical and financial power of attorney. A durable power of attorney allows an individual to make decisions for the benefit of your loved one in regards to financial and medical concerns over their well-being. This allows documentation to stay in place even if the elderlt loved one becomes incapacitated and is unable to make decisions independently. This individual is in charge of paying your bills, managing your assets and investments, and directing your medical care when you are unable to do so yourself. The medical power of attorney establishes your loved one’s plans for healthcare, such that the agent will work with medical professionals to ensure the individual is cared for in a manner in which they personally prefer. The financial power of an attorney gives an individual the ability to make financial decisions involving real estate and more. The agent can be responsible for depositing Social Security checks, managing tax returns, and other fiscal tasks. An esteemed Elder Care Attorney will assist you in completing these documents, as well as selecting the designated agent and specified senior housing. All the while, the attorney will guarantee that your assets will remain protected from the nursing home.

For further Medicaid eligibility information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively protect your assets from nursing homes.