maintained by
Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC

- Jump HERE to the "consumer" links, HERE for the lawyers' links page, HERE for a list of articles referred to on this page.   Skip past the following "alert" HERE  OR go further down HERE to get to my pre-blog "BLOG" (a/k/a "Various Notes and Announcements)

- CLICK for slide-show on Medicaid eligibility (NOT NECESSARILY CURRENT -- CHECK THE "LAST UPDATED" DATE)

• "Look-back" period extended to five years.  (For an explanation, see my page on "What If I Give It All Away?")  This means that the State "looks" at any transfer made within the 5 years preceding an application for Medicaid.
  
• If ANY gift  has been made in the past five years and cannot be PROVEN to be exclusively for reasons other than qualifying for Medicaid, or fits into any other "exempt" category, the result will be a period of ineligibility that will start AFTER THE PERSON MAKING THE GIFT NEEDS LONG-TERM CARE and AFTER THE PERSON HAS NO OTHER ASSETS (or if married, his/her spouse is already reduced to the minimal amount the law allows)
• NO ONE who is unmarried can qualify for long-term care benefits (whether in a nursing home OR at home) with equity in the home over $750,000 (sounds easy, but what if you happen to live in a very expensive area?)

• In 2003, the legislature adopted so-called "transferee liability" rules that were tied to the approval of the Section 1115 waiver (see below).  On June 8, 2005, the legislature made those rules effective IMMEDIATELY, despite the waiver's rescission. 
  
• Note that gifts made on/after 2/8/06 would now create "transferee liability" for applications within 5 years.
  
• The statute attempts to create a "debt" owed by the giver AND the recipient of any gift given after the date the bill is signed by the Governor, in the amount of the cost of care for the person who made the gift (up to the amount of the gift, not more). 
  
• The State is authorized to use any lawful means to collect the debt.  AS OF THIS WRITING, 2/25/2010, THE AUTHOR IS UNAWARE OF ANY ACTIONS BY THE STATE TO COLLECT THESE "DEBTS."
  
• NOTE:  more likely is that the NURSING HOME might sue your child as a "responsible party" if Medicaid is denied and there is no source of payment.  Collection attorneys are developing theories for suit against signatories to nursing home admissions agreements on the basis of "negligence" (failure to "spend down" in a timely fashion, failure to act promptly, etc.) or "contract" (breaking a promise to use assets exclusiely for the benefit of the resident, etc.)
  

Three questions --

(1) "How can I keep my home and support my lifestyle?"
(2) "How can I pay for what care I may need?" and
(3) "How can I leave something behind for the people and causes I care about?"

-- confront us as we enter old age

What are the answers?

Financial planning with reverse mortgages and home equity loans, annuities and retirement plans, earnings in compliance with Social Security laws, and careful projections in spending principal, to enable an elderly person to remain at home or to choose wisely in selecting an appropriate assisted living facility or other living environment.

Selecting appropriate long-term care insurance and "Medigap" supplemental insurance, and taking advantage of many helpful government programs including Medicare, Medicaid, the Connecticut Home Care Program for Elders, "QMB" and the Medicare Part D Low-Income Subsidy, to ensure continued care at home as long as possible, or if necessary, in an institutional setting.

Transfers of property, by Will or if appropriate during life, whether to minimize death and income taxes, or to prepare for Title 19 (Medicaid) eligibility if necessary, but keeping your needs and wishes as the guiding principle.

 What kind of planning is involved, and how can a lawyer help?

A typical plan might require a Will and/or living trust agreement, durable powers of attorney, living will and related documents, and designations of conservator in the event of future incapacity. The plan might also require evaluating the effect on Title 19 eligibility of planned gifts to family members, rights under Social Security or Medicare, or might involve real estate transfers.  

  If special care is needed, you may also require advice about eligibility for programs that provide coverage for nursing home care or for significant care at home, or help determining whether or not your resources are sufficient to support residence in an assisted living facility. 

Families with relatives in institutional facilities may require advice on the best way to ensure good care for their loved ones, or advice on enforcing their legal rights.

When planning has not been done, families may need assistance with techniques such as conservatorship if necessary to ensure an older person's well-being.

And after the planning is done (or if it wasn't done) -- families often need help with an application for Medicaid once an individual is in a nursing home or requiring long-term care at home.

It is vital to consult an attorney when a married couple is concerned that loss of income or assets to pay for one spouse's needs, may impact the quality of life of the spouse at home.
It is vital to consult an attorney when anyone without assets to pay for FIVE YEARS of institutional care (could be as much as $600,000 or more) intends to make gifts of any significant amount.
It is vital to consult an attorney when anyone applying for Medicaid realizes that he or she has made gifts, payments, or unexplained transactions of $1,000 or more since 2/8/06 -- don't panic, but there is work to do to make sure that these don't affect Medicaid eligibility.  THE ANNUAL EXCLUSION GIFTS OF $13,000 PER YEAR THAT YOUR ACCOUNTANT SAID WERE "OK" ARE NOT OK!

===================Various Notes and Announcements====================

BAD news for couples!  Eff. July 1, 2011, the legislature/Governor have REPEALED the wonderful law enacted in 2010 allowing the spouse of someone in a nursing home to keep $109,560 without having to go to a hearing -- back to "spending down" half the assets if the "half" is going to be less than $109,560.  Read my new article "Medicaid for married couples" to get details on this.  Moral: DO NOT SPEND TOO SOON, before the potential Medicaid recipient starts receiving care that qualifies for Medicaid payment.

  New Advice on "applied income."  More than once I receive calls from distraught family members who find out, long after Title 19 is approved, that they were supposed to pay income to the nursing home, did not, and now owe a large arrearage.  Read my new article on "After Spending Down" -- what you have to pay the nursing home.  NOTE:  THE AMOUNT WENT UP BY $9.00 ON JULY 1, 2011, WHEN THE PERSONAL NEEDS ALLOWANCE WAS REDUCED FROM $69 TO $60 -- THAT'S "SHARED SACRIFICE" FOR YOU!!!

Great New QMB rules!!  "QMB" is a benefit for low-income individuals who receive Medicare.  An individual is eligible for Medicare at 65 or after 24 months of eligibility for Social Security Disability Income (SSDI) (or sooner, with some disabilities).  However, Medicare has many gaps and deductibles and the "Part B" (doctor) coverage costs $96.50/month or more -- a lot more if someone did not enroll at the usual time.  QMB takes care of this.  QMB is a "Medicare Savings Plan" that pays the Medicare Part B premium and also pays the copays and deductibles for care from health care providers that participate in Medicaid.  Someone eligible for QMB is automatically  eligible for the Low-Income Subsidy for Medicare Part D (the prescription drug benefit under Medicare) -- which means no premium is paid for the standard prescription drug plan coverage, copays are small or nonexistent, and the "doughnut hole" in coverage -- where some Medicare Part D members must pay up to $3,000 or more for drugs -- does not exist.  The point is that starting October 1, 2009, there is no asset test for QMB (in Connecticut) and no estate recovery -- no obligation to repay benefits -- from the recipient's estate at death.  In Connecticut, any single person receiving Medicare, who has income of $1,778.91 or less (2009 figures) is eligible.  Check for updates on the figures at www.CTElderLaw.org.  The point is -- if an individual has Medicare, and lives in the community, (s)he may not need to worry about complying with the strict income and asset limits of the Medicaid program in order to get medical care and almost all prescriptions covered.   No more need to worry about the "spend-down" -- no more need to worry about staying under $1,600 per month.  You apply for QMB with a super-simple form:  click HERE (PDF file, fillable).  If you are already on Medicaid and eligible for QMB, your case worker should automatically put you in for QMB.  For the list of "benchmark" Part D (prescription) plans, click HERE to get the PDF file. Caution:  don't necessarily drop your supplemental insurance if you have it -- doctors CAN discriminate and decide not to accept you if they don't participate in Medicaid or even if they do but don't want to accept what the QMB will pay.

Elder Law Answer Book - NEW EDITION 2009 -- updated annually (and about to be updated again). I am proud to be co-author of the Elder Law Answer Book (3nd edition, 2009) (with annual updates) with nationally-recognized author Robert Fleming.  In a straightforward Q&A Format, the Elder Law Answer Book tackles the many different questions that confront those who advise the elderly and their families -- from Medicaid to Veterans Benefits to Wills and Trusts to Retirement Benefits.  While it isn't necessarily intended for the general public, it should be invaluable to planners, accountants, non-specialists, and others who assist the elderly.  You can order this book from Aspen Publishers, Amazon.com, or other booksellers, as well as the annual updates.


  New requirements for conservators.   Effective October 1, 2007, many changes have been made to the procedures for seeking appointment as conservator.  Limited conservatorships are preferred, and the court must make specific findings of fact concerning the need for help in each of a list of areas.  The person for whom conservatorship is sought is entitled to his/her own attorney.  The entire process is more complicated.  And starting in 2011, the number of Probate Courts will be cut in half. This office does not, in general, take cases that involve "contested" conservatorship applications.

TIP:  Interplay of Home Care Program and a Reverse Mortgage.  The Connecticut Home Care Program for Elders can provide much-needed home care services for those with limited resources, unable to pay for care.  Similarly, the Cash Assistance program can even supplement income for those with very little means of support.  HOWEVER, for those who aren't married, the State may place a lien on the home.  The idea is that the lien must be repaid when the individual leaves the home for an eventual permanent stay in a nursing home; or when the individual dies.  The problem is that these programs may not be enough, but the lien may deny the individual access to equity in the house by way of a reverse mortgage.  That is, the mortgage company will require that any liens on the home be paid off out of mortgage proceeds at the time of closing.  While the state lien is not repaid until death/institutionalization, and bears NO interest, the mortgage company lien accrues interest immediately. SOLUTION?  If there is ANY chance that you would want to access your home's equity to provide for care beyond what the Home Care Program will provide, you may wish to secure a reverse mortgage Home Equity Line of Credit BEFORE you apply for benefits.  You do not have to use up the line, but once the mortgage is  in place the state lien won't prevent you from getting the mortgage.  On the other hand, reverse mortgage fees can be very high and the debt begins accruing interest immediately.  Read more in this outline.

Help Understanding Medicaid.  Medicaid is a confusing subject.  This website includes a Powerpoint slide-show on "Medicaid and Long-Term Care in Connecticut" that should get you started in learning about this difficult topic.  THIS SLIDE SHOW MAY NOT BE CURRENT, SO BE CAREFUL ABOUT THE "LAST REVISED" DATE.  Since 4/1/2007 the Department of Social Services has been struggling to implement new regulations that interpret the Deficit Reduction Act -- with fierce opposition from CT's elder law attorneys. As of 2/25/2010, there are still no fully adopted regulations, although the State is enforcing / living by its "proposed" regs.  I'm waiting until the dust settles.  This site also includes 2 articles to explain what assets are "exempt," and what preparations you should make to "spend down" if you or a loved one (in CT) is inevitably likely to be on Medicaid in a short period of time.  You may also want to read about the tricky subject of "transfers of assets" subject to the ALERT above. Please note that if you are married, (1) the law provides you with additional protections, but (2) the State of Connecticut is restricting these protections more every day -- you MUST consult an attorney if you and your spouse have more than $21,912 (2010 figure) in NON-exempt assets or if one person could not support him/herself on his/her own income alone.

  How to Spend Down.  When Title 19 (Medicaid) is in the near future (you or a loved one has only enough in remaining assets to pay for a few months of care in a skilled nursing facility or at home), it is important to spend those remaining assets wisely.  Title 19 is a safety net and does not address all your possible needs.  See my checklist for, "Getting Ready for Medicaid," for some ideas about wise and practical ways to use those last dollars to protect yourself.  IF  YOU ARE MARRIED, DO NOT ACT upon these ideas without consulting an attorney!!!

Powers of Attorney:  Many people find it useful to have in force a Durable Power of Attorney giving one or more persons whom you trust, the power to handle your affairs for you if you are unable to do so.  If you have a valid power of attorney, you may avoid the need for the appointment of a court-supervised "conservator" if at some point you become unable to handle your affairs.  On the other hand, the Power of Attorney is a powerful document.  You are right to be cautious about giving another person broad power over your affairs.  Be sure your attorney-in-fact is aware that he or she is required by law to act for your benefit or otherwise as you have directed, and that in Connecticut, the probate court has the power to hold accountable the person named to act for you.  Finally, your Power of Attorney document should reflect your wishes.   Did you know that unless the Power of Attorney expressly authorizes gifts, even charitable gifts you make ever year, the attorney-in-fact has no authority to make gifts of your funds?  And that giving an unlimited power to make gifts to him or herself, can cause tax problems for the attorney-in-fact?  You should discuss your power of attorney with a lawyer. ALSO -- the rules differ state by state - don't assume your power of attorney will be honored in a different state. For more information on powers of attorney in Connecticut, you may want to consult my articles published in www.CTElderLaw.org, a consumer-oriented website that provides legal information of interest to elderly Connecticut residents.  (To go straight to the part on Powers of Attorney as I wrote it, updated by Legal Services attorneys, click here; Connecticut Legal Services has added references to the actual laws on this as well as making the Q&A easier to navigate, on this page.)

529 Plans.  Thinking of giving to your grandchildren?  "State-sponsored qualified tuition plans" can offer tax-free savings with significant control retained by the donor.  However, there are pitfalls you should worry about unless you are certain to have sufficient private resources to pay for all your future long-term care needs without recourse to government benefits.  Click here for my article on "Funding College with Section 529 Plan Gifts:  Benefits and Pitfalls."

Planning to Move? You should know that the laws of our 50 states are enormously different when it comes to insurance coverage, Medicaid eligibility, the validity of trusts, and even the meaning of your will.  It is vital that you consult a local attorney after, or even before your move.  Find a local attorney who is a member of the National Academy of Elder Law Attorneys

FOR A LIST OF CONSUMER LINKS FORMERLY ON THIS PAGE, click HERE.

List of Articles Referred to on this Page:

• Medicaid for Married Couples, REV. 7/1/11
  
  
• After Spending Down:  What You Still Have To Do When Your Spouse -- Mom -- Grandpa -- Aunt Sadie (Etc.) Has Applied for Medicaid in Connecticut
  
  
• Slideshow:  Medicaid and Long-Term Care in Connecticut (last updated June 7, 2010) (SORRY - USE INTERNET EXPLORER)
  

• "What if I give it all away?" Questions and Answers about the Medicaid Transfer Rules in Connecticut see the ALERT above for some important changes). Updated 6/2/2010
  

• Exempt Assets Summary

• Getting Ready to Be on Medicaid in Connecticut:  How Should You "Spend Down"?

• Funding College with Section 529 Plan Gifts:  Benefits and Pitfalls

• Paying for Staying at Home:  Reverse Mortgages
  

• Ten Reverse Mortgage Basics / The Good and Bad of Reverse Mortgages (summary outline)
  

Other places to write or call:   (please give me feedback on this information so I can keep it current)

Connecticut Programs and Information:

Elder Rights/Protective Services.  Investigates potential cases of elder abuse, neglect, abandonment or exploitation of persons 60 and over including monitoring and linkage with community based services.  1-888-385-4225 or 1-860-424-5241; after hours/weekends Infoline 800-203-1234.

Connecticut Home Care Program for Elders.  Offers home and community based services as an alternative to institutional placement.  Program is available to Connecticut residents aged 65 and older who qualify financially and functionally.  1-800-445-5394 or 1-860-424-5181.  For eligibility information, see the "Health Care" page of the CTElderLaw.org website, or go directly to the CT Home Care page.  The Department of Social Services also has information.

CHOICES, help for Connecticut residents in selecting appropriate "Medigap" or Medicare supplemental insurance: 1-800-994-9422, Connecticut's program for Health Insurance Assistance, outreach, information and Referral Counseling and Eligibility Screening" (affiliated with the Area Agencies on Aging.) 

Connecticut Hospice, Inc., 61 Burban Drive, Branford, CT 06405.  Tel:  (203) 481-6231, Fax: (203) 483-9539, email:  cthospc@interserv.com.  Connecticut Hospice provides care for those in the terminal stages of illness. 
 

Information on Reverse Mortgages:

http://www.hud.gov/rvrsmort.html - the government's site on reverse mortgages.

AARP has a comprehensive site on reverse mortgages at http://www.aarp.org/revmort; you can also check with the National Center for Home Equity Conversion (NCHEC) at http://www.reverse.org/

The following documents may be somewhat dated, so check the updates. 

"Money from Home: A Consumer's Guide to Reverse Mortgage Options."  Write to FannieMae, 3900 Wisconsin Avenue NW, Washington, DC 20016-2899. 

"Facts for Consumers -- Reverse Mortgages," published by the Federal Trade  Commission, Office of Consumer/Business Education, Washington, D.C. 20580. 

"Home Made Money,"  published by AARP, lists key questions to ask, offers less costly alternatives to reverse mortgages, and includes information on obtaining reverse mortgage counseling.  The guide can be ordered online or by calling toll free 1-800-424-3410.  You can order online by sending email to RMinfo@aarp.org.  Ask for publication  stock #D12894. Include your name, full postal address, the publication title and stock number. There is also an online version at http://www.aarp.org/revmort, AND you can download -- but it is 2 MB, in Adobe.

"Your New Retirement Nest Egg," by Ken Scholen, available from The National  Center for Home Equity Conversion, 7373 147th Street West, Suite 115, Apple  Valley, MN 55124. 

Help with Medicare and Medigap Insurance

Help with Medicare Issues:  Center for Medicare Advocacy, P.O. Box 350, Willimantic, CT 06226.  1-860-456-7790. Free assistance for Connecticut residents in most cases.  AN INVALUABLE SOURCE OF HELP WITH THAT IMPOSSIBLE MEDICARE PART D PRESCRIPTION BENEFIT. 

Help selecting appropriate "Medigap" or Medicare supplemental insurance AND the appropriate Medicare Part D Prescription Plan:  CHOICES, 1-800-994-9422, Connecticut's program for Health Insurance Assistance, outreach, information and Referral Counseling and Eligibility Screening" (affiliated with the Area Agencies on Aging.)  You can also check the CT Insurance Department site for Medigap policies.

General:

American Association of Retired Persons, Consumer Affairs Division, 601 E  Street, NW, Washington, D.C. 20049, telephone (202) 434-2277.  http://www.aarp.org

National Association on Area Agencies on Aging, 1112 16th Street, NW,  Washington, D.C. 20036, telephone (202) 296-8130 (maintains a nationwide  "Eldercare Locator Number," a toll-free number for information about public  programs for older Americans. Call 1-800-677-1116). 

Brookdale Center on Aging, Hunter College, 425 East 25th Street, New York,  NY 10010. Tel: (212) 481-4426; Fax: (212) 481-5069. Many useful  publications. 

DISCLAIMER:
THIS INFORMATION IS NOT PROVIDED AS  LEGAL ADVICE AND CREATES NO ATTORNEY-CLIENT RELATIONSHIP.  NO ENDORSEMENT IS INTENDED BY ANY REFERENCES HEREIN.  PLEASE CONSULT YOUR OWN LEGAL AND FINANCIAL ADVISORS BEFORE TAKING ANY ACTION.

I can only provide general information, and will not provide advice about a particular case without a formal engagement. Writing to me does not create an attorney-client relationship. IF YOU WISH TO ARRANGE A CONSULTATION, PLEASE NOTE THAT WHEN ADVISING ABOUT PLANNING FOR AN ELDERLY PERSON'S ASSETS, OR PREPARING DOCUMENTS FOR AN ELDERLY PERSON TO SIGN, THAT PERSON IS MY CLIENT AND IF THE PERSON IS COMPETENT, I MUST BE ABLE TO MEET WITH THAT PERSON ALONE.  (AND IF NOT COMPETENT, CAN'T SIGN DOCUMENTS!)

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