I use the terms Elder Law Attorney and Medicaid-Planning Attorney interchangeably. I consider myself an elder law attorney, in that I guide my elderly clients through a host of issues that uniquely impact their lives – even beyond Medicaid planning. These issues can bring, in tow, a host of emotional issues and uncomfortable family dynamics. For example, how does someone talk to their elderly parent about taking away their driver's license? An elder-law attorney can help. More on that emotionally-charged issue below.
What is the difference between an Estate Planning Attorney and an Elder Law Attorney?
Estate planning attorney plans for what happens after death. Elder law attorney plans for what happens during life, keeping the likely need for incapacity planning in mind. Elder law attorneys are focused on allowing people to age with dignity and control and only then consider the estate plan and what happens afterward.
Practically speaking, an estate planning attorney will draft advanced directives and a power of attorney; but they really center their practice around the Will and Trust (which plans for what will happen after their client passes away). While the trust and Last Will and Testament are very important documents; for the Elder Law attorney, a very specifically thought out power of attorney and advanced health care directives are the most important documents – because these are the documents that will serve our elder law clients while they are alive and need extra help and access to affordable healthcare. This sounds simple, and maybe even duplicative, but the practical effect on our client’s actual lifetime needs is tremendous.
Do all Elder Law Attorneys Help with Medicaid Planning?
No. Many say that they do, but will really refer that portion of a client's need to a firm that focuses on medicaid planning. There is nothing wrong with that. No firm "does it all," be wary of any firm claiming otherwise. Medicaid planning is a highly specialized sub-specialty. Medicaid law is a federal and state joint program, so Elder Law attorneys engaging in medicaid work need to keep up with federal changes and changes in state law and regulations promulgated by the Florida Department of Children and Families (the agency that determines Medicaid eligibility) and The Agency for Health Care Administration (the agency that administers Medicaid services). There are some important numbers that Medicaid changes from time to time:
Important Florida Medicaid Numbers [Last Updated January 2018]
- Divestment Penalty Divisor (average monthly cost of nursing home in Florida): $8,944.00
- Income Cap: $2,250.00 per month (gross)
- Asset Cap: $2,000.00
- Personal Needs Allowance:$105.00 per month
- Community Spouse Resource Allowance: $123,600.00
- Minimum Monthly Maintenance Needs Allowance: $2,030.00
- Maximum Monthly Maintenance Needs Allowance: $3,090.00
- Shelter Standard: $609.00
- Standard Utility Allowance: $347.00
- Resource Allowance for a Couple (Husband and Wife both reside in a facility): $3,000.00
- Home Equity Interest Limit: $572,000.00
See SSI/Medicaid Financial Eligibility Standards as set forth by the Department of Children and Families for updated asset and income standards that are updated periodically.
15 Key Medicaid Terms
1. Institutionalized Spouse (IS): the spouse who requires nursing home care (and would benefit if they were a Medicaid recipient).
2. Community Spouse (CS): the spouse who can continue to live at home (does not require Medicaid).
3. Medicaid Applicant (MA): our client desiring Medicaid benefits.
4. Medicaid Recipient (MR): after engaging in Medicaid planning, our client, who then receives Medicaid.
5. Personal Needs Allowance (PNA): a single Medicaid applicant is only entitled to their PNA.
- Health insurance premiums are also exempted because Medicaid wants Medicare or private health insurance to pay medical bills so Medicaid does not have to.
- Related to the Medicaid Income Test.
6. Minimum Monthly Maintenance Needs Allowance (MMMNA): a MA, who is married, is allowed to divert the MMMNA to prevent the CS from being impoverished. Any amount over the MMMNA, must go towards the IS’s cost of care.
- If the CS’s income is less than the MMMNA -- then IS’s assets, needed to generate sufficient income up to the MMMNA, are exempt.
- There is also a Shelter Standard Allowance (only for married/CS) and
- a Standard Utility Allowance (only for married/CS).
- Related to Medicaid Income Test
7. Community Spousal Resource Allowance (CSRA): a MA, who is married, is allowed to divert certain assets to their spouse. Medicaid says that the community spouse cannot have less than the CSRA for that year.
- CSRA formula add the countable (non-exempt) assets of both husband and wife; divide by 2. If the result is less than or equal to the CSRA, then no need to shelter assets. If result is higher than CSRA, need to do Medicaid planning for the excess resources.
- Related to Medicaid Asset Test
8. Snap Shot Date: Date used to calculate the CSRA.
- First day of the month the MA is admitted for a healthcare facility for at least 30 continuous days.
- Consider the hospital stay that leads into a nursing home stay:
- Example: MA goes into hospital on 12-15-2016. On 12-30-2016 transferred to nursing home. On 1-1-2017, family realizes how much the nursing home is going to cost and goes in to see an elder law attorney, wanting the MA to apply for Medicaid. Snapshot date is 12-1-2016.
9. Look Back Date: First day of the month when an MA enters a nursing home and applies for Medicaid benefits. This is also the date in which the look-back period is established.
10. Look Back Period: Beginning from the look-back date, Medicaid will “look back” five years at uncompensated transfers or transfers for less than fair-market value. If such transfers are found, Medicaid will divide the total amount by the monthly divisor to calculate the penalty period.
11. Spend Down: protecting, spending or transferring assets in order to bring the MA down to an asset level that will qualify them for Medicaid.
12. Compensated Transfer: transferring an asset for fair market value (does not trigger a penalty).
13. Uncompensated Transfer: gifting an asset or transferring an asset for less than FMV (will trigger a penalty period)
14. Monthly Divisor: average cost of one month in a Florida nursing home, used to calculate the penalty period.
15. Penalty Period: number of months that a MA, who is otherwise qualified, is ineligible to receive Medicaid benefits. Take value of all uncompensated transfers in prior 60 months, divide by monthly divisor to get the penalty period. The penalty period can exceed 60 months (there is no limit)! Penalty period begins when the client is in the nursing home AND financially qualified (i.e. “otherwise eligible” per income and asset requirements).
Helping Families Have Difficult Discussions with their Elderly Parents
As an elder law attorney, I am solutions-oriented. My clients, and their families, come to me with daunting problems other than medicaid planning; and I take pride in our firm’s ability to provide clear answers and chart the path forward. Families feel a weight lifted off of them after meeting with an elder-law attorney. However, we also assist with issues that impact family dynamics. For example: How do you tell Mom that it is no longer safe for her to drive?
Driving while incapacitated is a huge concern for many Elder Law attorney clients. The statistics say that once someone turns 70 years old, they are 40% more likely to get into a car accident. Since anyone at age 70 is generally going to be frailer than their younger counterparts, it logically follows that the risk of serious injury and death, as a result of that auto accident, is also greater. The fatality rate of all car accidents is highest among those over age 85.
Should my Elderly Parent or Grandparent Drive?
Families often recognize the risks, but do not know how to address the issue with their loved one who may be putting themselves (and others) at risk every time they get behind the wheel. They also worry that taking away an elderly relative’s ability to drive could also result in increased isolation/lower ability to interact with others socially.
As an Elder Law Attorney, it is my job to have difficult conversations with my senior clients that, often, their own families are unwilling or not comfortable having. Often seniors will listen to an objective third party, such as an elder law attorney, in a different way than a family member. The elder law attorney, of course, won’t be at the Thanksgiving Day table feeling awkward about suggesting that mom stops driving. With experience handling personal-injury cases as well, ultimately, we are concerned, not only about the well-being of the senior elder law client, but also that of children, people in other vehicles, or any pedestrians and cyclists crossing the road.
There are social services in South Florida that will provide computer-simulated driving tests. This can be useful to show the senior objective evidence of some of the deficits they may not have realized exist. Also, in Florida, the DMV has a service that accepts anonymous phone calls regarding a senior’s impairment to driving. This will prompt the DMV to schedule a driver’s test.
While public transportation is not always ideal, it is a viable alternative. In addition, there are senior driving services. Furthermore, in a day and age where Uber and Lyft are prevalent and affordable, there really is no excuse for an impaired driver to be behind the wheel.
Fla. Stat. 322.126 provides for reporting physical or mental infirmities that negatively impacts one's ability to safely drive a motor vehicle. A link to the Florida Department of Highway Safety and Motor Vehicles Division of Motor Vehicles (DMV) reporting form is below under elder law attorney resources.
Elder Law Resources
- ESS Policy Manual Summary of Chapters 200, 400 and 600
- ESS Policy Manual Summary of Chapters 800 and 1400
- ESS Policy Manual Summary of Chapter 1600 (Assets)
- Florida Medicaid Manual Chapter 1800 (Income)
- Florida Medicaid Manual Chapters 2000, 2200, 2400, 2600
- Florida Medicaid Laws Sections 3200, 3400, 3600, 4600 + Appendix A-1 through A-35