As a Medicaid-planning lawyer, I am often people's first point of entry into the long-term care system. People come to me with their worries and problems related to long-term care and incapacity planning. Most people do not realize that Medicaid is not just for the poor or impoverished. Generally, my clients who need Medicaid planning are middle class or upper-middle class people who have saved their entire lives for retirement, only to be shocked and dismayed at the incredibly high cost of long-term care. I help people not only afford these services, but direct them to different community resources to make their lives better. This is a great honor.
Sickness. Incapacity. Death. These are among the most difficult subjects to contemplate, yet some of the most universal. Money worries people. The news is riddled with talking heads discussing the stock market and economy. But, statistically speaking, the most likely threat to your savings is not a recession, but the much more likely need for long-term care services due to sickness and incapacity that come from old age.
In short: a Medicaid planning lawyer puts together strategies to help their clients pay the exorbitant costs associated with long-term care and protect their assets so they have something to pass onto their heirs.
Medicaid Planning Lawyers provides individuals a sense of control; bring peace of mind to a family at a time of great medical need. Medicaid planning allows me to create purchasing power and access resources that help my clients afford and buy the care that they want from the medical providers that they want; ensure a higher quality of care; bring dignity and preservation of independence in the face of incapacity; and preserve family savings and assets that can be passed down to the next generation.
Florida Medicaid Eligibility Issues
Medicaid applicants must meet the following standards in order to qualify:
1. Must be a resident of Florida
2. Must be a US Citizen or Resident Alien
3. Income Test: earns less than $2,313.00 per month (as of January, 2019, this number changes from time-to-time). If over income limit and married, see MMMNA test below. If single or cannot divert income to monthly spouse, need to utilize a Miller Trust (a/k/a Qualified Income Trust).
4. Asset Test: less than $2,000 of combined assets (as of 2018)
- remember that there are certain assets exempted (i.e. not counted by Medicaid).
5. Needs test (ADLs – do they need assistance with walking, transferring from a bed or chair to a standing position, dressing themselves, bathing, feeding and toileting).
- If one ADL requires assistance, Medicaid will not apply.
- If two ADLs require assistance, assisted living is appropriate.
- If three or more ADLs, the applicant will be deemed in need of chronic care / nursing home care.
- Dementia-related diagnoses are automatic qualifiers for Medicaid’s chronic / nursing home care standard.
As further explained in my article discussing activities of daily living and how they correspond to Medicaid planning, Florida Medicaid will only pay for those who meet the chronic level of care (three or more ADLs impaired). Some, who only require assisted living, may qualify under a Florida Medicaid waiver program.
As an elder law attorney, focusing on Medicaid planning, I am spending most of my time with clients who do not currently meet #3 and or #4 above: that is, my client do not currently qualify for Medicaid because, currently, they would not pass the income and asset test (i.e. they are worth more than $2,000 and/or earn more than $2,313.00 per month).
Why Is Medicaid Different in Each State?
Medicaid is a federal law that allows each participating state certain limited ways to deviate from the standards set federally. For example, federal law sets a range for what each state can set as their personal needs allowance (between $30 and $200 per month). Federal law also sets the range at which participating states to set their MMMNA. States can also choose from a range in which to set their CSRA. Click to read an updated summary of Important Florida Medicaid Numbers.
Federal law can be found in: 42 USC 1396p (this is the section that deals with Medicaid eligibility) and 42 CFR 430 and 20 CFR 416.
Federal Medicaid laws have been amended by:
- the Medicare Catastrophic Coverage Act of 1988;
- the Omnibus Budget Reconciliation Act of 1993 (OBRA ’93); and the Medicaid laws were amended, yet again by
- the Deficit Reduction Act of 2005 (DRA ’05).
While there are many more similarities than differences across state lines (due to the overriding federal law), it is in the client's best interest to consult with a Medicaid attorney in the state in which the client will be entering the nursing home.
What Do I Need For My Initial Medicaid Planning Attorney Consultation?
We encourage all family members who are involved in the care of our eventual client to accompany them to the initial Medicaid planner consultation. This is important because we will be discussing subjects that will impact the family. I am a firm believer in making sure that my clients feel educated and a part of this Medicaid planning process. Family members will often ask questions our clients wished they asked in the initial meeting. In addition, oftentimes, the client will not be able to accurately or effectively relay the sheer volume of information discussed at the initial consultation with the Medicaid-planning lawyer. Why try to obtain second-hand information when you can get it directly from the source!
If the potential client has a trusted friend, financial advisor, attorney or accountant that wants to attend, they are invited as well. We can certainly have trusted parties on speakerphone as well.
We find this is a more efficient use of time. When key decision makers are not present, it delays moving forward in a way that may hurt the client’s ability to qualify for Medicaid sooner; it also can be a waste of time.
First, it is important not to delay the appointment; time may be of the essence. As a result, if there are any documents that you cannot immediately locate, that is okay - they can always be provided later. Just come with what you can locate so we can start the Medicaid planning process sooner rather than later. All information below applies to the spouse as well.
1. Financial Information: bank accounts (checking/savings), investment brokerage accounts (e.g. UBS, Morgan Stanley, Meryll Lynch, Ameriprise, Vanguard, etc…), and retirement accounts (e.g. 401(k), IRA, Roth IRA, etc..).
a. The three most recent statements are needed. This also tells us exactly how these accounts are titled (i.e. in your name alone, jointly with another, in the name of a trust, etc..)
b. Medicaid considers joint accounts partially in the name of Medicaid applicant to be 100% accessible by, and thus 100% counted against, the Medicaid applicant.
2. Income Sources: It is very important that we know all sources of income (and how much) are coming in for you and your spouse (referred to as the community spouse). We need proof of income from the source (not just from bank statements).
3. Insurance Policies: We need the face page or declarations page on all life insurance (it is very important we know the death benefit and cash value); long-term care insurance; revocable or irrevocable pre-need funeral plans; purchase of cemetery plot; and disability policies).
4. Prior Estate Planning Legal Documents: Trusts (with any amendment); Last Wills and Testaments (with any codicils); Powers of Attorney; Health Care Surrogate Designations; Living Wills.
5. Real Estate + Other Legal Documents: Deeds to real estate, business partnership agreements, marital agreements.
6. List of Immediate Family Members: Names, phone numbers, addresses, email addresses.
7. Proof of Citizenship: (Medicare red/white/blue card, copy of passport or copy of birth certificate).
8. Health Insurance Cards: (Private, Medicare, Medicare Supplement, etc...)
9. Shelter Expenses (mortgage payments, homeowners insurance, property tax assessment)
10. Utility Expenses (electric, water, land line, garbage, sewer).
11. VA documents (if applicable).
12. Debts: Planning for Medicaid benefits often involves the retitling and transferring of assets. It is important to make sure that none of this runs afoul of the Florida Uniform Fraudulent Transfer Act. As a result, it is important that you disclose all debts and potential creditors.
*Again, we need all of these documents for both the medicaid applicant AND the medicaid-applicant's spouse.
All of these items and documents can be provided to your Medicaid planning lawyer at a later date if you have basic knowledge of the above items. The most important thing is that you show up to your appointment so we can outline your long-term care issues and begin to craft a solution.
(1) Medicaid Program Policy Manual (ESS Policy Manual). Published by the Florida Department of Children and Families).
(3) Deficit Reduction Act (DRA '05)