Sunday, September 25, 2011

My mom and dad's house is in jeopardy!

The short of a really long story I heard today, and many other days, is this: Mom goes into the nursing home, Dad is home and doing well. The nursing home says that they have to sign a lien on the home over to Medicaid for Dad's care. Is this true?

ANSWER: NO! Unfortunately, the nursing home staff, no matter how well intentioned, are not attorneys, and do not know what those of us who devote many hours of our time researching the legal intricacies that define the long term care planning area. - in fact, most attorneys cannot answer this question with any accuracy - it's simply very complex and highly specialized.

The short answer, without knowing how many other avenues might be available, spouses can ALWAYS transfer property of any kind to the other spouse without any penalty. What many will hear is that: "the spouse can live there with no problem his whole life with the lien on it.". While technically true, let me phrase it like this: "Mr. Smith, would you rather than your heirs receive the equity in your property upon your death, or would you rather give that equity to the state Medicaid agency?". I haven't had one client yet offer the latter.

So, what do you do? Again, with the caveat that there might be better options available, you have Mom transfer her interest in the property to Dad, immediately. Dad can use a power of attorney for this if he holds one for Mom, as could any other person who holds the power. Dad cannot give it away to anyone else, but what he can do is omit Mom in his will. Now, depending upon the state rules, typically the state will require that a portion of Dad's estate be given to Mom under the state's elective share or similar provisions, if Dad does not survive Mom. But, it's certainly an improvement over giving ALL of the equity away.

For those who are wondering if this applies to you, or your parents, you should run, and not walk, to the office of your local Elder Law attorney. Good Luck!

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