Elder Law & Medicaid

The practice of Elder Law has four major components: Advanced Planning, Structuring Assets to Qualify for Medicaid, Submitting a Medicaid Application and Post-Medicaid Approval Planning.

Advanced Planning

In the field of Elder Law/Elder Care Planning, Advanced Planning involves working with clients to ensure they have the necessary documents and asset protection plans in place before Medicaid benefits are needed. While we lack the ability to foretell the future, we do not lack the ability to plan for it.

The typical documents used in Advanced Planning include

Powers of Attorney, Health Care Proxies and Living Wills. The main purpose of these documents is to ensure that an agent, proxy or substitute is appointed to carry out the client’s financial and health care wishes once the client is no longer able to do so, typically due to poor health or dementia. Without these documents, it’s usually necessary to seek Court appointment of a guardian to make these decisions, which is far more involved and expensive that Advanced Planning.

In terms of asset planning, the goal in Advanced Planning is to seek asset protection from the claims of creditors, most notably, Medicaid, so client assets are available during their lifetime and beyond. The most common asset planning tool in Advanced Planning is the Irrevocable Medicaid Asset Protection Trust. Other asset protection planning tools include Supplemental Needs Trusts, Pooled Income Trusts, Promissory Note Planning and, sometimes, outright transfers, or gifts, of assets to loved ones.

While the ability to protect assets typically depends upon how far in advance Advanced Planning is done, Advanced Planning is almost always available.

Structuring Assets to Qualify for Medicaid

The Medicaid program, which is administered by both the Federal Government and the State of New York, has strict guidelines in terms of qualification. As a preliminary matter, in order to qualify for Medicaid benefits a New York resident must first demonstrate that he/she has medical needs which cannot be adequately addressed. After this threshold showing is made, it is then necessary to demonstrate financial eligibility for the Medicaid Program. In order to financially qualify for Medicaid, the Medicaid Applicant must demonstrate that he/she has only a small amount of “countable assets” and limited monthly income.

As previously suggested, ensuring a Medicaid Applicant meets the financial requirements of the Medicaid program can almost always be done; however, the time, effort and expense involved varies depending upon whether or not Advanced Planning was done.

Submitting a Medicaid Application

After ensuring medical and financial qualification for the Medicaid program, it’s next necessary to submit a fully complete Medicaid Application to the appropriate Department of Social Services or Human Resources Department. Because a fully complete Medicaid Application typically requires the submission of forms, financial documents, Advanced Planning documents and plans and explanations as to transfers and the structuring of assets, the application process can be burdensome. Furthermore, in addition to submitting a fully complete Medicaid Application, it’s very typical that the Medicaid Applicant will be asked to submit additional documents, information and explanations concerning the application and structuring of assets. In some instances, depending upon the complexity of the Medicaid Application and asset structuring, it may even be necessary to have a formal hearing, similar to a trial, to explain the above items.

Post-Medicaid Approval Planning

Post-Medicaid Approval Planning is appropriate and advisable whenever the person receiving Medicaid has a healthy spouse living in the community. Post-Medicaid Approval Planning allows this spouse to structure his/her assets in such a way that it makes it less likely that Medicaid will pursue recovery against the spouse, while at the same time allowing the spouse to effectively engage in Advanced Planning for his/her future needs.