maintained by
Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC

- Jump HERE to the "consumer" links, HERE for the lawyers' links page, HERE for a list of ARTICLES referred to on this page.   Skip past the following "alert" HERE  OR go further down HERE to get to my pre-blog "BLOG" (a/k/a "Various Notes and Announcements)

• For more detailed explanation, see my page on "What If I Give It All Away?")  This means that the State "looks" at transactions made within the 5 years preceding an application for Medicaid.
  
• If ANY "transfer" (other than a sale for FMV) has been made in the past five years and cannot be PROVEN to be exclusively for reasons other than qualifying for Medicaid or to fit into any other "exempt" category, the result will be a period of ineligibility that will start AFTER THE PERSON MAKING THE GIFT NEEDS LONG-TERM CARE and AFTER THE PERSON HAS NO OTHER ASSETS (or if married, his/her spouse is already reduced to the minimal amount the law allows).  For some help, see my "transfer penalty" article.
  
• A 2013 law gives nursing homes have a "statutory cause of action" against the recipient of a gift if the gift was made within 2 years of application and the gift is the reason Medicaid is denied and the nursing home isn't paid.  In other words, the recipient of the gift can get sued.  Even if the person who got the gift didn't sign the admissions agreement.
• The nursing homes can and do sue gift recipients AND other people involved in the application process, usually if signing as "responsible party," if Medicaid is denied for ANY reason, and there is no source of payment.  Collection attorneys are developing theories for suit against signatories to nursing home admissions agreements on the basis of "negligence" (failure to "spend down" in a timely fashion, failure to act promptly, etc.) or "contract" (breaking a promise to use assets exclusively for the benefit of the resident, etc.)  DO NOT SIGN THE PAGE THAT MAKES YOU INITIAL AND SIGN AS RESPONSIBLE PARTY and describes what that eans.
  
• BUT a spouse is NOT automatically liable for the debt to the nursing home -- at least under current law.  There is a CT Supreme Court case that says so. Don't just pay because they send you a bill. 
  

Three questions --

(1) "How can I keep my home and support my lifestyle?"
(2) "How can I pay for what care I may need?" and
(3) "How can I leave something behind for the people and causes I care about?"

-- confront us as we enter old age

What are the answers?

Financial planning with reverse mortgages and home equity loans, annuities and retirement plans, earnings in compliance with Social Security laws, and careful projections in spending principal, to enable an elderly person to remain at home or to choose wisely in selecting an appropriate assisted living facility or other living environment.

Selecting appropriate long-term care insurance and "Medigap" supplemental insurance, and taking advantage of many helpful government programs including Medicare, Medicaid, the Connecticut Home Care Program for Elders, "QMB" and the Medicare Part D Low-Income Subsidy, to ensure continued care at home as long as possible, or if necessary, in an institutional setting.  For those under 65 who aren't on Medicare, it's important to understand the rules of the Husky D benefit.

Transfers of property, by Will or trust at your death, or if appropriate during life, whether to minimize death and income taxes, or to prepare for Title 19 (Medicaid) eligibility if necessary, but keeping your needs and wishes as the guiding principle.

 What kind of planning is involved, and how can a lawyer help?

A typical plan might require a Will and/or living trust agreement, durable powers of attorney, living will and related documents, and designations of conservator in the event of future incapacity. The plan might also require evaluating the effect on Title 19 eligibility of planned gifts to family members, rights under Social Security or Medicare, or might involve real estate transfers.   The plan is for YOU, THE ELDERLY PERSON, and what YOU want to do. This may or may not mean "protecting your assets" for your heirs, as there is no free lunch, magic bullet, or magic trust.  Read my article. 

  If special care is needed, you may also require advice about eligibility for programs that provide coverage for nursing home care or for significant care at home, or help determining whether or not your resources are sufficient to support residence in an assisted living facility. 

Families with relatives in institutional facilities may require advice on the best way to ensure good care for their loved ones, or advice on enforcing their legal rights.  Families may need help understanding the programs that will help assist a loved one to get or stay at home -- if that's the best choice.

When planning has not been done, families may need assistance with techniques such as conservatorship if necessary to ensure an older person's well-being.

And after the planning is done (or if it wasn't done) -- families often need help with an application for Medicaid once an individual is in a nursing home or requiring long-term care at home.

It is vital to consult an attorney when a married couple is concerned that loss of income or assets to pay for one spouse's needs, may impact the quality of life of the spouse at home.
It is vital to consult an attorney when anyone without assets to pay for FIVE YEARS of institutional care (could be as much as $1 million or more) intends to make gifts of any significant amount.
It is vital to consult an attorney when anyone applying for Medicaid realizes that he or she has made gifts, payments, or unexplained transactions of $1,000 or more -- don't panic, but there is work to do to make sure that these don't affect Medicaid eligibility.  THE ANNUAL EXCLUSION GIFTS OF $18,000 PER YEAR THAT YOUR ACCOUNTANT SAID WERE "OK" ARE NOT OK!

===================Various Notes and Announcements====================

NEW ARTICLES about getting help with home care and understanding what assisted living options (PDF) are out there if you can't afford the high prices of private asssited living.

No liens on your home!  Starting July 2021, if you own a home and go into a nursing home, YES the state asks you to sell it, but the state NO LONGER records a lien on the house to get paid back when you sell.

Less "estate recovery" (pay back from your estate when you die -- it's NEVER when you're alive) ONLY for nursing home care or care under a "waiver" like the Medicaid waiver home care program.  And NO recovery for the AFDC/TANF you got when your kids were little.  And NO recovery for SAGA or state supplement.  NO recovery for the state-funded home care program or care at CVH or other mental hospitals.

  2018 VA rule punishes you for making gifts!  But lets more people qualify for VA "aid and attendance" benefits with an asset limit around $150,000. 

  A "senior" under 65 without health insurance?  THANK OBAMA. Expanded Medicaid (in Connecticut called Husky D) is available to those age 19-64 not on Medicare with "modified adjusted gross income" ("MAGI") of under 138% (net) of poverty.  It even covers nursing home care!  It has NO ASSET TEST! If you are disabled but not yet on Medicare, you have two years of Husky D to look forward to if your MAGI is low. Spend your savings and get free health insurance. And don't panic if you need nursing home care. Even a married person can get this if you file taxes separately.  Check out this page and look for Husky D.

  Nursing homes on the warpath!  A 2013 law gives nursing homes the DIRECT RIGHT to sue the recipient of a gift made within 2 years of applying for Medicaid, if as a result of this, Medicaid is denied (and the nursing home unpaid).  This is in addition to many tactics already employed by nursing home attorneys.  Do not panic if you receive a gift.  Many times a gift will NOT cause ineligibility --- provided it is presented correctly to the State when applying for Medicaid. But it all depends!  Consult an attorney.  The same law also allows nursing homes to sue whoever was in control of the resident's funds and did NOT pay the nursing home the required "applied income."  Read my article on this.

    GOOD news for couples!  (1) A court case called Lopes means that when one spouse needs Title 19, assets can be "spent down" by purchasing certain types of annuities for the benefit of the healthy spouse, provided the annuity meets requirements and in the vent of death repays the State for the costs of care of the spouse requiring Title 19.  This is already true (although not included in regulations) with respect to retirement accounts, but now someone without an IRA can do the same thing.  This can help the "healthy" spouse retain his/her standard of living, as in most cases, he/she keeps all his/her own income, and annuity payments are income.  This does NOT help the children get a big inheritance, of course.  It all depends on the particular situation, however! (2) A 2017 court case called Valliere also says that in some special cases, if you go to probate court well ahead of time, a court may order more of the couple's assets and incomes for the spouse in the community than the stingy Medicaid laws would otherwise allow.  Read my article "Medicaid for married couples".  SEE AN ATTORNEY if a spouse needs long-term care.

     Advice on "applied income."  More than once I receive calls from distraught family members who find out, long after Title 19 is approved, that they were supposed to pay income to the nursing home, did not, and now owe a large arrearage.  Read my new article on "After Spending Down" -- what you have to pay the nursing home. 

   Great QMB rules!  "QMB" is a benefit for low-income individuals who receive Medicare.  An individual is eligible for Medicare at 65 or after 24 months of eligibility for Social Security Disability Income (SSDI) (or sooner, with some disabilities).  However, Medicare has many gaps and deductibles and the "Part B" (doctor) coverage costs as much as $174.70 or more -- a lot more if someone did not enroll at the usual time.  QMB takes care of this.  QMB is a "Medicare Savings Plan" that pays the Medicare Part B premium and also pays the copays and deductibles for care from health care providers that participate in Medicaid.  Someone eligible for QMB is automatically  eligible for the Low-Income Subsidy for Medicare Part D (the prescription drug benefit under Medicare) -- which means no premium is paid for the standard prescription drug plan coverage and copays are small or nonexistent.  The point is that since October 1, 2009, there has been NO asset test for QMB (in Connecticut) and no estate recovery -- no obligation to repay benefits -- from the recipient's estate at death.  In Connecticut, any single person receiving Medicare, who has income of $2,649 (2024 figures) is eligible.  Check for updates on the figures at www.CTElderLaw.org.  The point is -- if an individual has Medicare, and lives in the community, (s)he may not need to worry about complying with the strict income and asset limits of the Medicaid program in order to get medical care and almost all prescriptions covered.   No more need to worry about the "spend-down" -- no more need to worry about keeping assets under $1,600.  You apply for QMB with a super-simple form or even online.  If you are already on Medicaid and eligible for QMB, your case worker should automatically put you in for QMB.  Caution:  don't necessarily drop your supplemental insurance if you have it -- doctors CAN discriminate and decide not to accept you if they don't participate in Medicaid or even if they do but don't want to accept what the QMB will pay.

   Elder Law Answer Book - updated annually. I am now (2023) sole author of the Elder Law Answer Book (with annual updates), originally the co-author of nationally-recognized author Robert Fleming.  I DO NOT SET THE PRICES, SO DON'T BLAME ME, but there are always libraries.  In a straightforward (if you are a lawyer :)) Q&A Format, the Elder Law Answer Book tackles the many different questions that confront those who advise the elderly and their families -- from Medicaid to Veterans Benefits to Wills and Trusts to Retirement Benefits.  While it isn't necessarily intended for the general public, it should be invaluable to planners, accountants, non-specialists, and others who assist the elderly.  You can order this book from Wolters Kluwer, Amazon.com, or other booksellers, as well as the annual updates.

  Qualifications for conservators and training course.   Starting in 2007, many changes were made to the procedures for seeking appointment as conservator.  Limited conservatorships are preferred, and the court must make specific findings of fact concerning the need for help in each of a list of areas.  The person for whom conservatorship is sought is entitled to his/her own attorney.  A conservator generally has to post a  bond (purchase insurance) to cover the value of the conserved person's assets.  The court will ask many questions when deciding if the person who wants to be conservator is "qualified."  It's complicated and can be expensive. The probate court offers a training course (3 hours - link is to sign-up page) for new conservators and has an online "standards of practice" guidebook. 

TIP:  Interplay of Home Care Program and a Reverse Mortgage.  The Connecticut Home Care Program for Elders can provide much-needed home care services for those with limited resources, unable to pay for care.  Similarly, the Cash Assistance program can even supplement income for those with very little means of support.  But often it is not enough.  A reverse mortgage Home Equity Line of Credit can help to supplement what the state provides, although it will have to be repaid from the house when you die.  By the way: the "segregated" money from a reverse mortgage does not count as an asset for Medicaid eligibility -- but that doesn't mean transfers aren't subject to penalty.  Read more about reverse mortgages in this outline.  On the other hand, reverse mortgage fees can be very high and the debt begins accruing interest immediately. 

  How to Spend Down.  When Title 19 (Medicaid) is in the near future (you or a loved one has only enough in remaining assets to pay for a few months of care in a skilled nursing facility or at home), it is important to spend those remaining assets wisely.  Title 19 is a safety net and does not address all your possible needs.  See my checklist for, "Getting Ready for Medicaid," for some ideas about wise and practical ways to use those last dollars to protect yourself.  IF  YOU ARE MARRIED, DO NOT ACT upon these ideas without consulting an attorney!!!

Powers of Attorney:  Many people find it useful to have in force a Durable Power of Attorney giving one or more persons whom you trust, the power to handle your affairs for you if you are unable to do so.  If you have a valid power of attorney, you may avoid the need for the appointment of a court-supervised "conservator" if at some point you become unable to handle your affairs.  On the other hand, the Power of Attorney is a powerful document.  You are right to be cautious about giving another person broad power over your affairs.  Be sure your "agent" or POA is aware that he or she is required by law to act for your benefit or otherwise as you have directed, and that in Connecticut, the probate court has the power to hold accountable the person named to act for you.  Finally, your Power of Attorney document should reflect your wishes.   Did you know that unless the Power of Attorney expressly authorizes gifts, even charitable gifts you make ever year, the attorney-in-fact has no authority to make gifts of your funds?  And that giving an unlimited power to make gifts to him or herself, can cause tax problems for the agent/POA?  You should discuss your power of attorney with a lawyer. MAKE SURE THE LAWYER KNOWS THAT ALL STATE FORMS CHANGED IN 2016 AND 2017!  AND THAT THE TYPICAL "LONG FORM" MEANS YOU MUST INITIAL THE SPECIAL POWERS FOR THEM TO BE EFFECTIVE!  ALSO -- the rules differ state by state - don't assume your power of attorney will be honored in a different state. For more information on powers of attorney in Connecticut, you may want to consult my articles published in www.CTElderLaw.org, a consumer-oriented website that provides legal information of interest to elderly Connecticut residents.  The site also has plain-vanilla forms that can be useful if you can't afford to get an attorney to help you.

529 Plans.  Thinking of giving to your grandchildren?  "State-sponsored qualified tuition plans" can offer tax-free savings with significant control retained by the donor.  However, there are pitfalls you should worry about unless you are certain to have sufficient private resources to pay for all your future long-term care needs without recourse to government benefits.  Click here for my article on "Funding College with Section 529 Plan Gifts:  Benefits and Pitfalls."

Planning to Move? You should know that the laws of our 50 states are enormously different when it comes to insurance coverage, Medicaid eligibility, the validity of trusts, and even the meaning of your will.  It is vital that you consult a local attorney after, or even before your move.  Find a local attorney who is a member of the National Academy of Elder Law Attorneys

FOR A LIST OF CONSUMER LINKS AND INFORMATION,

List of Articles Referred to on this Page (in more or less chronological order, most recent to oldest):

• Getting Home Care in Connecticut
  
  
• "Transfer Penalty" and What to Do
  
  
• Why Not a Medicaid Specialist?  Why you need a LAWYER.
  

• What the Heck is a Pooled Trust? How your Elderly or Disabled Family member with Income that is "Too High" Can Still Qualify for Medicaid Home Care
  
  
• Being the Beneficiary of your Spouse's Testamentary Trust
  
  
•  What You Owe Your Family If You Have a Preliminary Diagnosis of Alzheimers


• "Protecting Assets" (Against the Expense of Long-Term Care)  -- STRAIGHT TALK
  
  
• Medicaid for Married Couples (updated periodically)
  
  
• After Spending Down:  What You Still Have To Do When Your Spouse -- Mom -- Grandpa -- Aunt Sadie (Etc.) Has Applied for Medicaid in Connecticut (updated periodically)
  

• "What if I give it all away?" Questions and Answers about the Medicaid Transfer Rules in Connecticut see the ALERT above for some important changes).
  

• Exempt Assets Summary (updated periodically)

• Getting Ready to Be on Medicaid in Connecticut:  How Should You "Spend Down"? (updated periodically)

• Funding College with Section 529 Plan Gifts:  Benefits and Pitfalls

• Paying for Staying at Home:  Reverse Mortgages (2005)
  

• Ten Reverse Mortgage Basics / The Good and Bad of Reverse Mortgages (summary outline, 2009)
  

Check out the many useful links on my Consumer Links pages

DISCLAIMER:
THIS INFORMATION IS NOT PROVIDED AS  LEGAL ADVICE AND CREATES NO ATTORNEY-CLIENT RELATIONSHIP.  NO ENDORSEMENT IS INTENDED BY ANY REFERENCES HEREIN.  PLEASE CONSULT YOUR OWN LEGAL AND FINANCIAL ADVISORS BEFORE TAKING ANY ACTION.

I can only provide general information, and will not provide advice about a particular case without a formal engagement. Writing to me does not create an attorney-client relationship. IF YOU WISH TO ARRANGE A CONSULTATION, PLEASE NOTE THAT WHEN ADVISING ABOUT PLANNING FOR AN ELDERLY PERSON'S ASSETS, OR PREPARING DOCUMENTS FOR AN ELDERLY PERSON TO SIGN, THAT PERSON IS MY CLIENT AND IF THE PERSON IS COMPETENT, I MUST BE ABLE TO MEET WITH THAT PERSON ALONE.  (AND IF NOT COMPETENT, CAN'T SIGN DOCUMENTS!)

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