A: If you qualify, Community Care Medicaid benefits include custodial care at home, like having an aide come to your house for a set number of hours a day to be sure you are fed, dressed, comfortable, etc. They help with limitations of your activities of daily living, and Medicaid pays the aides, so you don’t have to pay them. Medicaid, in and of itself, is a welfare program. To qualify for it, you need to have assets and resources below $30,182 (in 2023). If you give away your assets to become eligible to a nonexempt person, there will be a penalty period before you can receive Medicaid benefits. A new law was instituted in 2020, creating a 30-month lookback period. This means Medicaid can audit your finances for that period to see if any transfers or gifts were made. If any are found, they impose a penalty. The penalty is calculated so that for every $14,136 you gave away during that period of time, you will have to privately pay for your services for one month. Therefore, if you gave away $30,182, you would have to pay two months of your care privately before Medicaid would start paying. Such transfers will also affect your eligibility for Medicaid to pay for your Chronic Care if you need to enter a nursing home within five years of making such transfers.
In addition to the asset and resource limit, Medicaid has an income limit when applying for Community Care Medicaid; it only allows an individual to keep $1,677 (in 2023) of their income per month. Medicaid is entitled to use the rest of that individual’s income (a/k/a excess income or “overage”) to pay the Managed Long-Term Care company (or “MLTC”) that provides home health aide services. For many seniors, this is a serious problem. It’s extremely difficult, if not impossible, to meet the costs of living on Long Island with such a low-income allowance. However, there is a way to keep the benefit of your excess income while still qualifying for Community Medicaid assistance— joining a pooled trust. Not-for-profit companies run these types of trusts, and one of their benefits is allowing people on Community Medicaid to keep the income they need for living expenses.
A pooled trust is a trust usually established and administered by a non-profit organization. It is frequently used in elder law to preserve income that Medicaid would otherwise take from you and reclaim to pay bills in the applicant’s name or joint spouses. Without using a pooled trust properly, Medicaid will pay for aides to come to your house, but may not allow you to keep as much of your income. The rest of your income will go to the Managed Long-Term Care company (or “MLTC”) to reimburse them for the aide services they provided. With the use of a pooled trust, the majority of your income can be used to pay your living expenses and neither Medicaid nor the MLTC will take it. In other words, it is a tool that gives you the opportunity to age in place at home.
Spousal refusal is a legally valid Medicaid planning option in just two states: New York and Florida. By way of background, certain income and assets are exempt from Medicaid if there is a spouse. But if the well spouse (community spouse) has too much in countable resources and income, Medicaid can ask for the amounts above the exemptions to help pay for the care costs of the spouse requiring Medicaid benefits.
Many spouses have told us they simply can’t afford to live on the income and resource allowances set by Medicaid law. This is where spousal refusal comes in. The spouse not on Medicaid benefits can file a Spousal Refusal with the Department of Social Services, which allows that spouse to have unlimited income and resources and still allows the spouse that needs Medicaid benefits to be eligible for those benefits. In this situation, the spouse not receiving Medicaid benefits has a greater chance of having the resources and income necessary to live at home.
A: Estate planning is developing a legal method of maximizing and then distributing your wealth. Everyone has an estate. It is merely the reference used to describe everything you own. Your physical well-being is at least as important as your financial comfort, and therefore, estate planning should include planning for your health as well as your finances. There are four core documents needed in a basic estate plan: A Last Will and Testament, power of attorney, health care proxy, and living will. However, estate and long-term care planning often get more complex. Trusts and other asset transfers can be valuable in many circumstances, such as when you want to minimize taxes, avoid probate, and plan for Medicaid eligibility. However, the four core documents discussed above should be in place for everyone. In fact, a comprehensive power of attorney, health care proxy, and living will ought to be more important to you than a will because a will only comes into play after you die. If circumstances develop while you are alive but incapacitated to the point where you can’t handle your own finances or make health care decisions, these rather inexpensive documents usually avoid the significant costs and delay of having a guardian appointed for you by a court. You can learn more information about trusts on the FAQs below or by visiting our “Articles” page.
A: A Last Will and Testament can be simple or complex. It can eliminate many problems and misunderstandings when settling your affairs upon death. At a minimum, you appoint someone called the executor to pay any debts and taxes due and to distribute your assets to the people who you would like to receive those assets (called the beneficiaries or legatees), in the amounts you wish, at the time you wish, and under the conditions you wish, which are all defined in the terms you create under the will. If you have children that are minors, it’s a good idea to create a testamentary trust within your will to give the minors’ share to a trustee to manage the assets and make smart financial decisions on behalf of those children until they reach an age you deem appropriate to receive the assets discharged from the trust. You should also name a guardian to raise the children until they reach the age of 18. If you have difficulty deciding who should play the role of guardian for your children, understand that your will can contain different terms than your spouse’s will. So, often it’s better to agree to disagree as opposed to not getting any estate plan in place. You don’t want to leave the decision making up to New York State – you may not like who the state chooses. When someone dies without a will or a poorly written will, the legal heirs of the decedent may be unpleasantly surprised about how the money gets distributed according to New York State’s laws of intestacy. In some situations, a living trust, such as a revocable or irrevocable trust, may help simplify the administration of your affairs upon your death, as well as offer lifetime benefits to you while still alive. You can learn more about trusts on the FAQs below or by visiting our.
A: A power of attorney is a document in which you designate one or more persons, called agents, to manage your finances or act for you if you are unable to do so. It can be limited to specific matters or drafted to give the appointed agent(s) authority to act broadly on your behalf. The duration of the authorization can be limited or open-ended. A power of attorney gives the agent(s) designated the ability to act on your behalf with financial institutions, insurance companies, tax authorities, and other government agencies.
The appointed agent(s) can also be given the authority to transfer or gift funds to implement an asset protection plan or for Medicaid planning purposes. For that reason, this may be the most important document in your estate plan.
A power of attorney is a formal document that should be prepared by an attorney, witnessed by two people, and signed under an attorney’s supervision. New York has specific laws governing these requirements. The standard form is not sufficient for estate planning because it needs to be modified to contain enhanced powers for asset preservation and Medicaid eligibility. Moreover, older versions of the power of attorney should be reviewed regularly as the laws frequently change.
A: A health care proxy is a document that allows you to appoint someone as an agent to make health care decisions on your behalf if you become unable to do so. A health care proxy gives an agent the right to speak with health care providers, doctors, hospitals, etc., and to make important decisions, in your best interest, regarding health care needs when you become unable to make these decisions on your own.
A health care proxy is a formal document that should be prepared by an attorney and signed under an attorney’s supervision.
A: A living will is a document that contains your health care wishes and is addressed to family, friends, caregivers, hospitals, and other health care facilities. You may use a living will to specify your wishes about life-prolonging procedures and other end-of-life care so that your specific instructions can be read by your caregivers when you are unable to communicate your wishes. While New York doesn’t have a law governing living wills, the Court of Appeals, New York’s highest court, has stated that living wills are valid as long as they provide “clear and convincing” evidence of your wishes.
If you are 18 years of age or older, you may express your wishes in writing about your health care by signing a living will.
A living will is a written declaration of your health care wishes. You can use a living will to write your wishes about care at the end of life. You may describe the medical situations in which you would accept or refuse medical treatment. You may specify the kind of treatment you may or may not want. For example, you can specify whether you wish to be kept alive with a feeding tube or intravenous feeding if you are terminally ill or comatose and there is no hope you will recover.
You can also specify whether you want medical treatments such as CPR, blood transfusions, and dialysis, or whether you want to be kept alive on a ventilator for a short time if necessary to be an organ donor. A custom-tailored living will helps make your objection to unwanted medical treatments clear to your caregivers, family, and friends.
A: Much has been written regarding the use of revocable trusts as a solution for a wide variety of problems associated with estate planning that wills can’t address. Some attorneys regularly recommend revocable trusts, while others believe their value has been somewhat overstated. The choice of utilizing a revocable trust in your estate plan should be made after considering several factors and only after your goals have been clearly stated. The old saying holds true here: “What is a better tool, a shovel or a hammer?” The answer, of course, is, “What are you trying to accomplish?” Whether or not a revocable trust is right for you is based on what you want to do.
In general, a revocable trust can help you manage your assets, provide special instructions for the distribution of the trust assets, avoid probate and the court system, and retain privacy. Revocable trusts permit you to revoke or amend them whenever you wish to do so. In general, revocable trusts don’t help in Medicaid planning.
A: Unlike a revocable trust, an irrevocable trust has terms that typically can’t be modified, amended, or terminated. An irrevocable trust avoids probate, but they really shine as a safe, risk-free environment to transfer assets and shield them from Medicaid recovery. Assets placed in an irrevocable trust shield those assets from Community Care Medicaid after 30 months (2 1/2 years) and Chronic Care Medicaid after 60 months (5 years). Irrevocable trusts are the primary tool used in Medicaid pre-planning.
Andreoli Law Group, P.C. Elder Law & Estate Planning
1777 Veterans Memorial Hwy., Suite 12
Islandia, New York 11749