A Plan toCreate the Life You Want to Live

Putting an Aging in Place Plan together now allows us to live our lives the way we want later.

Growing older comes with its own unique challenges, uncertainty about the future shouldn’t be one of them. Sit down with an elder law attorney who will answer all your questions.

Book a Consultation

As an Elder Law Attorney, I can help you put together an estate plan that anticipates your needs so that you can live more independently as you enter the third age.

Where You Want To Be

I am a believer in avoiding a nursing home as long as possible. I am not alone. My clients desire to live out their days at home or in an assisted living facility.

Let's discuss how putting a plan in place furthers that goal.

Elder Law Attorney

Elder Law encompasses a broad range of legal issues affecting seniors as they age. As an elder law attorney, I help seniors not only focus on distributing assets at their deaths, but also plan for living independently and joyfully in the decades after retirement.

Aging in Place Team

Growing older can be especially scary for seniors who do not have close family members to help them. We can help put together a “team” of friends and professionals to make sure seniors have the emotional, financial and physical support to age in place.

Elder Law Matters I Handle:

Article 81 Guardianship

Guardianship proceedings where a loved one or friend is incapacitated and unable to take of care of their personal needs or finances. In order to be appointed as someone’s guardian, a court proceeding must be initiated in Supreme Court. Usually a hearing is held within twenty eight days and the focus is on whether the alleged incapacitated person needs someone to help them with their daily needs and financial management and who would be most suitable.

Medicaid Applications

The cost of Nursing Homes in New York City can exceed $18k per month. The cost of home health aides can be upwards of $300 per day. With such high costs, Medicaid planning is an essential estate planning tool for most families. If one spouse needs long term care, it is vital that the well spouse not become impoverished trying to keep pace with astronomical costs. Even a single person needing long term care has viable options.

How We Help

We help people become qualified for Medicaid from start to finish, including preservation of assets when a loved one enters a nursing home or requires home health care. We can aid in long term care placement in nursing homes (Chronic Medicaid) and aging in place solutions utilizing home health aides (Community Medicaid).

Learn More About 2023 Medicaid Income & Asset Guidelines

Medicaid Asset Protection Trust

A Medicaid Asset Protection Trust is an irrevocable trust that allows the grantor to move assets outside of their name for purposes of Medicaid eligibility. Assets placed in a Medicaid Asset Protection Trust are completely protected after the "look back" period. In New York the look back period is 5 years for nursing home care and currently no look back period for home care Medicaid.

At first blush this may seem like some sort of racket attorneys came up with that skirts the law – attorneys did come up with it, but it is perfectly legal and ethically sound as well.

In order to explain how this trust works, you need to understand how qualifying for Medicaid works.

To qualify for Medicaid long term care in 2023, the applicant can only have $28,133 in countable resources (retirements accounts are largely exempt). But Medicaid will ask, "where did your money go?" If you need nursing home Medicaid, then Medicaid will require bank statements going back 5 years. That 5 year period is the "look back" period. For home care assets can be moved one month and the applicant can be eligible the following month - but is slated to change to 2.5 years in 2023.

Assets in the trust pass to the grantor's beneficiaries at the grantors death or at the death of the grantor's spouse.

So what's the catch?

The creator of the trust, the grantor, can retain a lifetime right to the income generated from the trust. However, the grantor is never allowed principle from the trust - thats what protects it. So if a brokerage account is in the trust, the grantor (and spouse) can only receive the income generated from the investment.

The grantor also retains the right to live in any residence placed in the trust. This life estate guarantees that not only will have peace of mind, but also the grantor continues to receive property tax exemptions and the property gets a step up in basis to fair market value at death.

Neither the grantor of a Medicaid Asset Protection Trust nor a spouse can be the Trustee of the trust. However, the grantor retains the right to change the Trustee and beneficiaries at any time. That's a powerful right.

A Medicaid Asset Protection Trust is a powerful tool for families that want to preserve wealth for their spouse and the next generation.

We Make the Process Simple

Book a complimentary online or in-person consultation where we discuss your finances, goals and any existing long term care insurance you have.

We discuss why Advance Directives are necessary before you get sick so that you always have a voice in caseyou become incapacitated.

Flat Fees

Our estate planning is flat fee, meaning you don’t have to worry the clock is ticking when you have questions.

More importantly, we can concentrate on custom tailoring a plan that is perfect for you.

Our Process

1
Free 1 Hour Consultation - online or in person
2
Client Portals for Easy Communication
3
Draft Review Meetings
4
Signing Date that fits your Schedule

Our consultations are always thorough
and always free

Book online, schedule through email
or call our office at (212) 739-1736

Medicaid Long-Term Care

Medicaid Applications can be complicated and require interface between clients, social workers, doctors, nurses, personal care aides, and the Department of Social Services.

That’s why we you get an Attorney and a Medicaid Coordinator.

Meet Susan Marchesini

Our Medicaid specialist, Susan Marchesini, is an integral part of the team. As an experienced Medicaid Coordinator in the legal field for over 15 years and a native New Yorker, she helps clients navigate through the the complexities of both nursing home care and community Medicaid in all five boroughs and Long Island.

EDUCATION

Susan graduated from New York University School of Continuing & Professional Studies, cum laude, with a Bachelor of Arts Degree. She attended classes in the Masters Program at the School of social work at both New York University and Hunter College. She is a member of Alpha Sigma Lambda.

Elder Law & Medicaid Frequently Asked Questions

What is Elder Law?

Is an elder law attorney more expensive than a regular attorney?

An elder law attorney is no more expensive than any estate planning attorney. An elder law attorney focuses on preserving seniors’ assets while they are living so that they can lead healthy, happy independent lives. An elder law attorney can help develop an aging plan that includes long term care options while still preserving assets for future generations. An elder lawyer also assists seniors and their families qualify for Medicaid long-term care at home or in a hospital.

What is medicaid long-term care?

Medicaid long-term care is a joint state and federal program providing needed nursing home and home care services to citizens over age sixty-five, blind, or disabled and who are below certain income and asset thresholds. contrary to popular opinion, medicaid recipients receive the same homecare and nursing home care as private pay individuals. that’s right – the same exact care. medicaid is by far the largest provider of such services in the country.

the term “medicaid long term care” covers a range of different care:

chronic medicaid, for inpatient nursing home care (also called “institutional.”) this is an entitlement that is provided to anyone who is eligible, and only for care given in nursing homes.
community medicaid, utilizing home health care services. also called medicaid waivers/home and community based services (HCBS). HCBS provides in-home care, as well as adult day care and in assisted living facilities.

Do I qualify for medicaid long-term care?

What are countable assets for Medicaid long-term care?

New York has a relatively generous Medicaid program which in 2023 allows a recipient to have up to $30,182 in countable resources and, under some circumstances, the residence.

Assets include:

Cash
Real estate, such as a vacation home or commerical building
Bank accounts (checking, savings)
Stocks, bonds, and other investments

Some assets are considered “exempt,” including:

Primary residence (under some circumstances)
Retirement Accounts if the RMD is being taken
Personal belongings
A vehicle
Non-refundable pre-paid funeral plans
Burial funds (up to $1,500)
Life Insurance with a cash surrender value less than $1,500
If married, the spouse can retain $148,620.

How do I qualify for Medicaid if I am over the asset limit?

New Yorkers who do not meet the asset limits for Medicaid eligibility have some options available.

Transfer assets to a spouse. Spouses with over $137,400 can sign a "spousal refusal". Be aware that Medicaid can go after the spouse’s estate when they sign a spousal refusal, but with proper planning this can be avoided.
Transfer assets to children. This can be problematic because the applicant loses control over the assets and runs the risk of children losing it to divorce or creditors. Moreover, if the applicant needs nursing home care before the 5 year look back period, children may not return the assets.
Make exempt transfers. Medicaid has different exempt transfer rules depending on the type of asset. A home can be transferred to:

Spouse
A child under 21 or who is certified blind/disabled child of any age. This can include your child over age 65.
A sibling with an equity interest in the home who has lived there for at least one year immediately prior to the applicant’s most recent institutionalization
Caretaker Adult Child. This is a child who has resided in the home for at least 2 years, immediately prior to the most recent institutionalization and who provided care that allowed the applicant to stay in their home instead of a nursing home or other medical facility. Presumably, the child provided care, unless it can be proven otherwise.

Any other assets can be transferred without a penalty to:

A blind or disabled child.
A trust for the sole benefit of a disabled person under the age of 65. Medicaid can seek reimbursement against the estate of the disabled beneficiary.

A trust for the sole benefit of a spouse.
Draft a Medicaid Asset Protection Trust. Any assets placed in an irrevocable trust are not countable resources for Medicaid purposes after the look back period. The grantor (and spouse) retains the right to income, but cannot touch the principal. If a home is placed in the trust, the grantor retains the right to live there for life and continue to receive property tax exemptions. A family member or friend is chosen to act as the Trustee. Most importantly, the grantor retains the right to change beneficiaries at any time and replace the trustee.

What is a pooled income trust?

A Pooled Income Trust is how New Yorker's can obtain home care services while also preserving their monthly income for payment of household bills.

Pooled Income Trusts are established and managed by non-profit organizations for the benefit of disabled beneficiaries. Since a Medicaid recipient can only keep $904 per month, any income above this amount is sent to the Pooled Income Trust. The Medicaid recipient submits bills to the Pooled Income Trust for household expenses paid out for his or her benefit and the trust uses the income deposited to pay the bills.

What are the Medicaid income guidelines?

Medicaid long-term care income guidelines vary depending on whether the recipient needs home care (community)Medicaid or Nursing Home (chronic) Medicaid.

A nursing home resident can keep $50.00 per month with the rest going toward the nursing home cost. If married, the "well spouse" can $3,715 (more under spousal refusal provisions).

If utilizing Community Medicaid to Age in place, excess income over the allowable $1,677 can be retained to pay the Medicaid recipient’s bills by using a Pooled Income Trust.

What can a pooled income trust pay for?

How does Medicaid treat a primary residence?

A primary residence is exempt for determining Medicaid eligibility when either (a) the applicant lives in the home and the value is less than $906,000; or (b) if a spouse, minor child, disabled child, or sibling with equity interest lives in the home, no matter the value of the house.

Therefore, if an applicant is receiving nursing home medicaid, the house is an exempt resource so long as a spouse, minor child, or disabled child lives in the home. However, Medicaid can put a lien against the home at a spouse, minor or disabled child's death.

What is the Medicaid look-back period?

Many people believe if they start getting rid of assets immediately, they’ll be “impoverished” enough and qualify for Medicaid. For instance, someone who sells property, such as their house, for less than market value in order to qualify. Unfortunately, that’s not the way it works, and you could bring even more trouble if you do it without help.

New York’s Medicaid program has what’s called a “look-back period.” This means that any assets transferred out of the applicant's name (or spouse's name) in the years before applying for Medicaid can lead to a denial of eligibility for as long as five years.

For Institutional Medicaid (Chronic Medicaid/Nursing Home Medicaid), the current lookback period is 5 years.

For Community Medicaid, there is currently no lookback period but starting in January 2022, a 2½ year lookback period will eventually be implemented. This new law became effective on October 1, 2020, and will increase monthly up until the 2½ year limit.

Medicaid examines all transactions during the appropriate timeframe to ensure that assets were not sold or gifted for less than fair market value. If an asset was transferred during the look-back period, a period of Medicaid ineligibility is created. Medicaid will not pay for 1 month of care for approximately every $13k transferred.

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Office:
221 Columbia Street
Brooklyn,NY 11231

Ph. (212) 739-1736 Fax (212) 202-5263
jwilson@jessicawilsonlaw.com

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*Please note that our office does not provide notary service to the public. If you drop in for notary, the attorney will accommodate you if possible. However, we do not under any circumstances take appointments or calls regarding notary services. Thank you for understanding.