Legal Question in Elder Law in New York

Re: Asset protection

If your mom was in rehab following a hospital stay, chances are that Medicare, not Medicaid, was the program paying for her rehab. You are correct, however, that Medicare stops paying once they determine she is no longer improving.

If she is married, she can have no more than $3850 in total assets to be Medicaid eligible, but her spouse can have a house of any value, a car of any value, and up to $90,000 of other assets. So depending on the value of the other house, she may be able to transfer everything to her husband and be eligible for Medicaid right away. If so, Medicaid will pay 100% of her nursing home costs.

New York State also permits "spousal refusal", which means that even if her spouse has more than $90,000, he can refuse to make it available to pay the cost of her care, and she will then be immediately eligible. Spousal refusal is a risky strategy, because it can result in the Department of Social Services (the agency that administers Medicaid on the local level) suing her spouse to force him to support her. However, in some cases it can be done successfully.

I believe that your mother can save most, if not all of her assets, if you work with a qualified attorney. I don't ususally practice in your zip code (I'm in the Albany area)but I would be happy to talk to you, and help you find someone in your area who can help you. If you are interested, you can call or e-mail me.

Re: Asset protection

You are correct that there is a 3 yr "look back" on any transfers but there are exceptions. If the spouse is a co-owner living in the house, it can be transfered to him w/o penalty. The second house may be a problem but you won't lose it. Your mom may have to give away 1/2 of her equity in it and the other half the nursing home may get.

If you wish to discuss further please feel free to call me or email.

Debra Palazzo