Mom is in memory care and on Hospice, has Medicaid, and is HCBS approved. Should I set up an irrevocable trust?
She is three months behind on memory care and only has her SS. payments and $2,000.00 after spend down. Should she come home or go to a Nursing home? I’m her Durable POA. Any advice would be helpful.
My over all plan is leave no stone unturned : Pro Vs Cons on a Caretaker Child exemption which I’m currently waiting for a decision on from Medicaid after they first said they never heard of this I sent along ,info that a employee gave me their policy number and section and info required to see if I missed any thing. They have received it…checked Help would be great. Warning I’m dyslexic Thank God for Google
Stoner, Fwiw most States when it comes to MERP aka estate recovery & the various exclusions/ exemptions/ cost benefit analysis within regulations on recovery, the States are having an outside contractor doing it OR it’s a division in the State AG office (AGs office seems to have it cause it’s after death situation so involving laws for intestate, probate & property) OR a specific legal group in state Medicaid division. Because of this the average state employees who deal with Medicaid applications or Medicaid caseworkers who evaluate applications do not ever deal with this aspect. Ever. It’s not in their wheelhouse. By & large Medicaid staff process & evaluate applications that they have no control over what those applications require. Imo this is a big factor as to why having an CELA level of elder law attorney shepherd an application & a MERP savvy probate attorney is a very good thing.
Stoner, to do a Trust your mom needs an attorney. Even if you are her POA. Mom still needs to be in the convo on all this between you as her POA, the attorney and herself. It is not ever a DIY. We can share our experiences on this forum but ya need an attorney in your State to advise. & need one with Medicaid regulations experience.
Your mom is in a facility currently, right? If so, I’m concerned that IF YOUR MOM HAS applied for a long term care Medicaid program to cover her stay in a facility (NH, MC or AL) that you do not realize that by doing the application she has enabled the State to denote and verify her assets and income. And so any change to her assets will be easily found and will pose serious issues for her eligibility. Changing ownership & (therefore the Title of a house) from in her name to in the name of a Trust is an asset transfer and not allowed by Medicaid once an application filed. Somewhere in the LTC Medicaid application will be a notice on this and what type of fines or penalties the State can do. Once ownership change surfaces - and it will - she will be ineligible and the facility she is in will also get her ineligibility notice & they will do whatever needed to get their bill paid. Get a copy of her LTC Medicaid application and also every page of her admissions paperwork from the facility she is in now. Read thru it and then take it to the meeting with the attorney so they can explain just what you & mom have allowed the State and the facility to do should something go amiss.
You also mention she qualifies for HCBS. If so, that is a community based Medicaid program(s). Home & Community Based Services for those still living in their home/apt or with family. This is a different Medicaid application & allows for more income & assets than LTC Medicaid does. Just how community based Medicaid does eligibility depends on how your State runs a specific program. Please realize She cannot be on both. If you decide to have her leave the facility she is in now and move back home, she goes off LTC Medicaid and goes on community based Medicaid assuming eligible. Her old bill from the facility if not paid by LTC Medicaid will still exist and the facility will do whatever needed to get it paid.
You wrote “Medicaid will only cover her medical needs in MC”. Ok this isn’t exactly accurate….. hang with me on this as it’s confusing…. Medicaid is beyond a huge, huge, program; it’s everything from Happy Teeth vans that do preventative dental care for kids (CHIP) to loan out of breast pumps for new moms (WIC) to having a caregiver come to elders home 4 x a week (HCBS) to 24/7 oversight and care in a NH (LTC Medicaid). PLUS!! there is also Medicaid as health insurance for those low/lower income. Medicaid as health insurance will continue to exist for her alongside her Medicare as health insurance as long as she’s low income. It is Medicaid as health insurance that pays in some way for medical costs done for her at a facility or for costs for her to see a MD or be hospitalized. MediCARE is her primary insurance & Medicaid as her secondary insurance if she is on Original Medicare and low income enough to qualify for health insurance by Medicaid. BUT Neither Medicare or Medicaid as health insurance will pay for the room & board costs to be a resident in a facility. It is LTC Medicaid program that can pay for her room&board costs if she is “at need” both financially and medically for however her State runs their LTC Medicaid.
Hospice is a MediCARE benefit.
Its a lot of competing information to try to sort out. It’s overwhelming as often it’s hard to figure out which Medicaid is which. To me, MediCARE & Medicaid is a real mice maze to understand as Medicaid is so frickinhhuge. Find all the applications your mom has filed and go over all this with the attorney & before you do anything change any existing asset ownership. Good luck.
You need to contact a attorney that can answer questions that apply to your state. Many states don't allow for Medicaid to cover a nursing home if you own a home as that is considered an asset. Some states go so far as to count the sale of a home as an asset for the five years previous to having the state pay for a nursing home.
my MIL lived in CA and they did not count home ownership against you.
I have had trust agreements with my parents and when my Dad died I had to get a lawyer to do new legal paperwork for my Mom. The key is to make sure the estate (in your case it appears to be Moms home) out of probate.
you do need to need to investigate the laws pertaining to where you live
Stoner, in your answer to a poster below you say that your Durable Power of Attorney explicitly says that you may do this irrevocable trust. Why then your question to us? We are only a simple Forum of simple people learning as we go. If your document says you can do this, and it is your opinion that this is what should be done, then attend an attorney in your state with your documents to check that this can be done, and to create the trust if you wish to do so. Do know that your Mom's assets, if she is on medicaid at this time, have already been enumerated (by you???) on her application documents. Take those documents with when you see your attorney. The best place for legal questions is a lawyer The best place for medical questions is a doctor The best place for mental distress questions is a therapist The best place for financial with a CPA and so on. Always get expert legal advice. As you know, your document also provides the funds for this. Best out to you.
So what asset(s) are your thinking could go into a Irrevocable Trust?
It sounds like your mom has already done an application for long term care Medicaid to pay for her stay at the MC, if so, in the application she needed to have listed her assets. Assets would be like if she has a home, a car and whatever $ in her savings. So if she, or you as DPOA, now go and change the legal ownership of those assets (a Trust will become the new owner), it will be a problem for her eligibility / her application as she’s gone and changed it’s legal status. It’s too too late as a change in ownership needed to happen 5 years before ever filing for LTC Medicaid
Actually I’m way more concerned on the 3 months unpaid at the MC. Her MC is going to want her account paid in some way. why isn’t it being paid partially from her SS mo income? Is this due to her having a Medicaid application still being processed? If so, facilitates know it can take time for an application to be done. The resident is at the facility as a “Medicaid Pending” & 3 -4 months seems to be the timeframe for application to process. It’s not unusual. BUT if she has filed for LTC Medicaid, part of the requirements are that the elder has to, HAS TO, do a copay of their monthly income to the facility. Mom does NOT get to keep her SS income anymore once in a facility and filed for Medicaid. She is supposed to do a copay of almost all her mo income - like SS - less whatever her State has as personal needs allowance (PNA). Copay due every month. PNA tend to be $50-60 a mo. You need to find out exactly what Kansas has for PNA $. Once on LTC Medicaid, PNA is it for any $ as income but can have a $2K as assets in her old bank account for most states.
There can be confusion on the copay. Like just when the copay is required to be paid to the facility kinda depends on state laws. Some states (TX) are copay is due from date of application so required to be paid to the place whether or not they eventually become Medicaid eligible. So a elder in TX who gets $1500 a mo SS income will have from day 1 a copay of $1440 a mo to the NH as TX has a $ 60 PNA. Even if it takes 5 months for Medicaid application (they r Medicaid Pending for 5 months) to get done, they have to do the copay to the place every month. But other states cannot compel the elder to do the monthly income copay while their Medicaid application is being processed. So this elder who gets $1500 a mo SS lives in a state that cannot compel the copay while their application is pending; and it takes 4 months so they let their SS income build up cause the minute their application clears Medicaid they will have to pay those 4 months ($ 6K) of SS $ to facility asap. If you as her POA go and use her SS $ to pay her bills or pay on things for her house, that is a misuse of her income under LTC Medicaid. To keep her ok for Medicaid you will have to make up the difference personally to get her copay caught up. I’ve been on this forum a long time and this scenario comes up periodically as neither the NH or Medicaid really clearly explain how a delayed copay has to be paid eventually and family go spend moms $ on mom s old bills so it then an issue for their eligibility. If this is at all what’s happening for your mom, find out asap what she needs to have paid as her copay each month and please set it aside for that purpose.
Your moms hospice costs r paid by Medicare but in no way will Medicare pay for her room&board costs. R&B are Medicaid or private pay or LTC insurance.
She has no will but she wanted her house to go to her living kids. The trust would only go to the beneficiary only after she has pasted. Medicaid will only cover her medical expenses in memory care because they considered it as a assisted living . She will have to come home or live in a skilled nursing home.
First, always keep in mind that state laws vary and that you must follow the rules where your mother lives.
I'm sorry but I'm confused, most likely because I don't know anything much about Medicaid and HCBS. Is your mother in a memory care facility that does not take Medicaid? Where is she in hospice?
As for an irrevocable trust, are you thinking of a Medicaid Asset Protection Trust? Some states have them and they can have different rules. They are devised to protect assets while allowing a person to qualify for Medicaid. However, Medicaid look-back rules apply (although different states can mean different number of years) so MAPTs need to be set up a number of years before the person needs Medicaid. Regular irrevocable trusts may not protect all a person's assets from Medicaid.
What assets would you plan to put in an irrevocable trust at this point? Because of the Medicaid look-back rule, it's probably too late to protect any assets beyond the monthly income, and the allowed dollar amount of assets and perhaps not even those. It's probably too late to try to prevent your mother's home from Medicaid taking her house to pay her Medicaid nursing home costs. However, there are several rules that will prevent Medicaid from taking her home after she dies.
Suggestions: Sit down and clarify what it is you want to accomplish always remembering that as the POA agent you are legally responsible to act in your mother's best interests. Figure out the best plan for having your mother taken care of. If there are bills outstanding and she has the resources to pay them, pay them.
If she is in hospice and qualifies for HCBS, you could consider having her come home. You would need to be honest with yourself about what caring for her at home would mean to your physical and mental health. Then consider the pros and cons of having her in a nursing home versus having her at home.
Your question is confusing so I may not have touched on what you are really concerned about. If that's the case and/or you have further complications to consider, speak with an elder law attorney. In fact, it is never a bad idea to talk to an elder law attorney if you're dealing with Medicaid.
Only a principal (the person HIM or HERSELF) can set up an irrevocable trust. Your Mom is on Medicaid with 2,000 in assets? Can you tell me what you were hoping to protect in this "Trust?" There is nothing you need/should do at this point with Mom's end of life. If she has 2,000 you might consider prepaid cremation costs if you are POA and in charge of these funds. I am also uncertainhow HCBS approval plays into all this, or matters at this point. If I am missing something in your question hope you will elaborate. I surely hope your Mom's receiving quality hospice care and is comfortable, and I am so sorry about your impending loss.
A financial POA agent can set up an irrevocable trust for a principal (here, the mother). However, the mother's POA document must explicitly state per state law that Stoner (the agent) has the particular power to do this. Setting up a trust is one of many referred to as a "hot power." My guess is that her mother's POA does not explicitly state that Stoner has the power to set up a trust, revocable or not.
8 Answers
Helpful Newest
First Oldest
First
Your mom is in a facility currently, right? If so, I’m concerned that IF YOUR MOM HAS applied for a long term care Medicaid program to cover her stay in a facility (NH, MC or AL) that you do not realize that by doing the application she has enabled the State to denote and verify her assets and income. And so any change to her assets will be easily found and will pose serious issues for her eligibility. Changing ownership & (therefore the Title of a house) from in her name to in the name of a Trust is an asset transfer and not allowed by Medicaid once an application filed. Somewhere in the LTC Medicaid application will be a notice on this and what type of fines or penalties the State can do. Once ownership change surfaces - and it will - she will be ineligible and the facility she is in will also get her ineligibility notice & they will do whatever needed to get their bill paid. Get a copy of her LTC Medicaid application and also every page of her admissions paperwork from the facility she is in now. Read thru it and then take it to the meeting with the attorney so they can explain just what you & mom have allowed the State and the facility to do should something go amiss.
You also mention she qualifies for HCBS. If so, that is a community based Medicaid program(s). Home & Community Based Services for those still living in their home/apt or with family. This is a different Medicaid application & allows for more income & assets than LTC Medicaid does. Just how community based Medicaid does eligibility depends on how your State runs a specific program.
Please realize She cannot be on both. If you decide to have her leave the facility she is in now and move back home, she goes off LTC Medicaid and goes on community based Medicaid assuming eligible. Her old bill from the facility if not paid by LTC Medicaid will still exist and the facility will do whatever needed to get it paid.
You wrote “Medicaid will only cover her medical needs in MC”.
Ok this isn’t exactly accurate….. hang with me on this as it’s confusing…. Medicaid is beyond a huge, huge, program; it’s everything from Happy Teeth vans that do preventative dental care for kids (CHIP) to loan out of breast pumps for new moms (WIC) to having a caregiver come to elders home 4 x a week (HCBS) to 24/7 oversight and care in a NH (LTC Medicaid).
PLUS!!
there is also Medicaid as health insurance for those low/lower income. Medicaid as health insurance will continue to exist for her alongside her Medicare as health insurance as long as she’s low income. It is Medicaid as health insurance that pays in some way for medical costs done for her at a facility or for costs for her to see a MD or be hospitalized. MediCARE is her primary insurance & Medicaid as her secondary insurance if she is on Original Medicare and low income enough to qualify for health insurance by Medicaid.
BUT
Neither Medicare or Medicaid as health insurance will pay for the room & board costs to be a resident in a facility. It is LTC Medicaid program that can pay for her room&board costs if she is “at need” both financially and medically for however her State runs their LTC Medicaid.
Hospice is a MediCARE benefit.
Its a lot of competing information to try to sort out. It’s overwhelming as often it’s hard to figure out which Medicaid is which. To me, MediCARE & Medicaid is a real mice maze to understand as Medicaid is so frickinhhuge. Find all the applications your mom has filed and go over all this with the attorney & before you do anything change any existing asset ownership. Good luck.
ADVERTISEMENT
my MIL lived in CA and they did not count home ownership against you.
I have had trust agreements with my parents and when my Dad died I had to get a lawyer to do new legal paperwork for my Mom. The key is to make sure the estate (in your case it appears to be Moms home) out of probate.
you do need to need to investigate the laws pertaining to where you live
Why then your question to us? We are only a simple Forum of simple people learning as we go.
If your document says you can do this, and it is your opinion that this is what should be done, then attend an attorney in your state with your documents to check that this can be done, and to create the trust if you wish to do so.
Do know that your Mom's assets, if she is on medicaid at this time, have already been enumerated (by you???) on her application documents. Take those documents with when you see your attorney.
The best place for legal questions is a lawyer
The best place for medical questions is a doctor
The best place for mental distress questions is a therapist
The best place for financial with a CPA
and so on. Always get expert legal advice. As you know, your document also provides the funds for this.
Best out to you.
It sounds like your mom has already done an application for long term care Medicaid to pay for her stay at the MC, if so, in the application she needed to have listed her assets. Assets would be like if she has a home, a car and whatever $ in her savings. So if she, or you as DPOA, now go and change the legal ownership of those assets (a Trust will become the new owner), it will be a problem for her eligibility / her application as she’s gone and changed it’s legal status. It’s too too late as a change in ownership needed to happen 5 years before ever filing for LTC Medicaid
Actually I’m way more concerned on the 3 months unpaid at the MC.
Her MC is going to want her account paid in some way.
why isn’t it being paid partially from her SS mo income?
Is this due to her having a Medicaid application still being processed?
If so, facilitates know it can take time for an application to be done. The resident is at the facility as a “Medicaid Pending” & 3 -4 months seems to be the timeframe for application to process. It’s not unusual.
BUT
if she has filed for LTC Medicaid, part of the requirements are that the elder has to, HAS TO, do a copay of their monthly income to the facility. Mom does NOT get to keep her SS income anymore once in a facility and filed for Medicaid. She is supposed to do a copay of almost all her mo income - like SS - less whatever her State has as personal needs allowance (PNA). Copay due every month. PNA tend to be $50-60 a mo. You need to find out exactly what Kansas has for PNA $. Once on LTC Medicaid, PNA is it for any $ as income but can have a $2K as assets in her old bank account for most states.
There can be confusion on the copay. Like just when the copay is required to be paid to the facility kinda depends on state laws.
Some states (TX) are copay is due from date of application so required to be paid to the place whether or not they eventually become Medicaid eligible. So a elder in TX who gets $1500 a mo SS income will have from day 1 a copay of $1440 a mo to the NH as TX has a $ 60 PNA. Even if it takes 5 months for Medicaid application (they r Medicaid Pending for 5 months) to get done, they have to do the copay to the place every month.
But other states cannot compel the elder to do the monthly income copay while their Medicaid application is being processed. So this elder who gets $1500 a mo SS lives in a state that cannot compel the copay while their application is pending; and it takes 4 months so they let their SS income build up cause the minute their application clears Medicaid they will have to pay those 4 months ($ 6K) of SS $ to facility asap. If you as her POA go and use her SS $ to pay her bills or pay on things for her house, that is a misuse of her income under LTC Medicaid. To keep her ok for Medicaid you will have to make up the difference personally to get her copay caught up.
I’ve been on this forum a long time and this scenario comes up periodically as neither the NH or Medicaid really clearly explain how a delayed copay has to be paid eventually and family go spend moms $ on mom s old bills so it then an issue for their eligibility. If this is at all what’s happening for your mom, find out asap what she needs to have paid as her copay each month and please set it aside for that purpose.
Your moms hospice costs r paid by Medicare but in no way will Medicare pay for her room&board costs. R&B are Medicaid or private pay or LTC insurance.
I'm sorry but I'm confused, most likely because I don't know anything much about Medicaid and HCBS. Is your mother in a memory care facility that does not take Medicaid? Where is she in hospice?
As for an irrevocable trust, are you thinking of a Medicaid Asset Protection Trust? Some states have them and they can have different rules. They are devised to protect assets while allowing a person to qualify for Medicaid. However, Medicaid look-back rules apply (although different states can mean different number of years) so MAPTs need to be set up a number of years before the person needs Medicaid. Regular irrevocable trusts may not protect all a person's assets from Medicaid.
What assets would you plan to put in an irrevocable trust at this point? Because of the Medicaid look-back rule, it's probably too late to protect any assets beyond the monthly income, and the allowed dollar amount of assets and perhaps not even those. It's probably too late to try to prevent your mother's home from Medicaid taking her house to pay her Medicaid nursing home costs. However, there are several rules that will prevent Medicaid from taking her home after she dies.
Suggestions: Sit down and clarify what it is you want to accomplish always remembering that as the POA agent you are legally responsible to act in your mother's best interests. Figure out the best plan for having your mother taken care of. If there are bills outstanding and she has the resources to pay them, pay them.
If she is in hospice and qualifies for HCBS, you could consider having her come home. You would need to be honest with yourself about what caring for her at home would mean to your physical and mental health. Then consider the pros and cons of having her in a nursing home versus having her at home.
Your question is confusing so I may not have touched on what you are really concerned about. If that's the case and/or you have further complications to consider, speak with an elder law attorney. In fact, it is never a bad idea to talk to an elder law attorney if you're dealing with Medicaid.
These are suggestions and not legal advice.
Your Mom is on Medicaid with 2,000 in assets?
Can you tell me what you were hoping to protect in this "Trust?"
There is nothing you need/should do at this point with Mom's end of life. If she has 2,000 you might consider prepaid cremation costs if you are POA and in charge of these funds.
I am also uncertainhow HCBS approval plays into all this, or matters at this point.
If I am missing something in your question hope you will elaborate.
I surely hope your Mom's receiving quality hospice care and is comfortable, and I am so sorry about your impending loss.