Legal Question in Real Estate Law in Georgia

I am in the process of placing my mother who has alzheimer's into a private assisted living facility. The monthly fee will be paid from her her social security check and annuity monies. I was going to sell her house after we get her in the facility and then use that money for future payment needs. I am being told that if she is in the home and I sell the house, that Medicare will step in and take 1/3rd of the sell. But if she is living in the house and we sell, they can't touch her sell as long as she isn't in the facility. Is there any truth in this? Her social security is not enough to cover the monthly charge. Her annuity will probably run out in about 3 years. The money from selling the house would probably cover another 3 years. A decision has to be made by Monday as a deposit is required to hold a room in the facility; currently there is only one room left. How does this thing work - Medicare taking a person's money?????

Asked on 10/19/12, 7:45 pm

1 Answer from Attorneys

Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

Forget anything with a Monday deadline. (I am guessing you mean Medicaid and not Medicare). Youi are attempting in two days to do planning that should have been done many years ago.

In addition to providing low-income families and seniors over the age of 65 with health care coverage, Medicaid also pays for long-term nursing home care for elders. If your parent is reaching the age where you think a nursing home or assisted liviing might become a possibility, it's important to begin planning years in advance. Both federal and individual state laws govern Medicaid, and both include a period of ineligibility for long-term care coverage if your parent transfers assets before applying.

Medicaid eligibility depends on the value of the assets your parent owns. If the value exceeds certain limits, she won't qualify. The easy answer is for your parent to give away those assets, but the law restricts this. The federal government and individual states fund Medicaid, and if all seniors simply gave away their assets to qualify when they need long-term care, it would place a financial burden on the government. Therefore, the law restricts transfers made during the five years before your parent applies, even if she makes the transfers to you. This is commonly referred to as the "look-back" period.

The law doesn't prohibit all transfers. It addresses only those made for less than "fair consideration," or fair market value. For example, if your parent owns artwork appraised at $30,000, she can't give it away or sell it for anything less than that during the look-back period. If she sold the artwork for $20,000, she would still have a $20,000 cash asset in the bank, and the $10,000 difference would also count against him for Medicaid eligibility.

Transferring assets for less than fair market value during the look-back period doesn't bar your parent from Medicaid eligibility forever, but it will result in a penalty period. Calculating the length of this period depends on your state. Begin with the overall value of the assets your parent transferred or undersold, then divide that number by the average monthly cost of a nursing home in your state.

For example, if your mother gave away $300,000 in assets, and if the average cost of a nursing home in your state is $5,000, she would be ineligible for Medicaid for sixty months, or $300,000 divided by $5,000. The penalty period usually begins on the day your parent applies for Medicaid, assuming she meets all other qualifications.

Not everything your parent owns counts as an asset for Medicaid purposes. Her home is exempt, unless she has a significant amount of equity in it. Even then, the equity may not count if her spouse, her child under 21 years old, or her disabled or blind child are living in the home. At least one automobile is also exempt, as well as life insurance policies and some assets that produce income.

Note that if she sells the house, the proceeds also could disqualify her for months or years until they are spent.

The law surrounding Medicaid is complicated. Plus, the facts of each case are unique. You need to see an elder law attorney. And to avoid catastrophe, do not make any decisions until after the meeting. Signing something Monday without legal advice could mess up your mother's life, and yours, for many years.

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Answered on 10/19/12, 8:39 pm

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