Do I Need an Attorney When Applying for Medicaid Nursing Home or Medicaid Home Care in New York?

Applying for Medicaid nursing home or home care is an extremely complex process – one with potential complications not often evident at first glance. The rules and regulations relevant to Medicaid eligibility also change frequently and vary by state. Securing the services of a seasoned elder law attorney is imperative to ensure the most favorable outcome.

There are many instances when utilizing an experienced attorney can make a significant difference. For example, the Medicaid applicant’s spouse may need to execute a spousal refusal in order for the applicant to successfully obtain Medicaid (a spousal refusal allows the well spouse to retain resources and income above the levels ordinarily permitted). Once a spousal refusal has been executed, however, the well spouse will be subjected to a potential lawsuit by the Department of Social Services. Knowing one’s legal rights and options in the face of a potential suit is critical.

Additionally, there are legal arguments that can be made with regard to the transfer of assets by the Medicaid applicant that would avoid the implementation of a potentially onerous penalty period. When someone other than an elder law attorney handles the Medicaid nursing home application, however, these opportunities are almost always overlooked.

It’s also important to consider that the application process for Medicaid nursing home or home care is one that typically takes several months as further documentation and explanations are often required. Medicaid officials may require up to five years of financial records and will closely examine every detail. Any unexplained or questionable expenses – even those that are part of routine planning – can disqualify the applicant if not properly handled. In most cases, elder law attorneys are able to complete this process much faster, saving the applicant a significant amount in care expenses. 

There is also post Medicaid eligibility planning, which is often needed (and which a non-attorney cannot advise upon). The failure to properly make these arguments and to be in a position to get the proper legal representation provided by an experienced elder law attorney can result in tens of thousands of dollars being unnecessarily spent by the applicant and his or her family.

What is the Difference Between a Revocable Living Trust and a Last Will & Testament in New York?

One question I am often asked is the difference between a Last Will & Testament and a Revocable Living Trust. While many simply default to a Last Will as their primary estate planning document, the Revocable Living Trust has been gaining significantly in popularity over the past several years. Here are the basics on both:

Last Will & Testament
A Last Will & Testament is a legal document that allows you to specify how (and to whom) your assets are to be distributed when you pass away. The document also outlines the person(s) who will be responsible to carry out your wishes.

It is important to remember that the Last Will & Testament only controls the assets that are in the name of the decedent alone on the date of his or her death – not assets jointly held by the decedent with another, such as a spouse, or which have named beneficiaries. In New York State, a Last Will & Testament must be admitted into probate by the Surrogate’s Court in the county where the decedent resided. In probate, the Last Will must be proved to be valid, property must be inventoried and appraised, and any debts and taxes must be paid before the decedent’s assets are distributed.

Revocable Living Trust
Created during an individual’s lifetime, a Revocable Living Trust is a written agreement that determines how property titled in the name of the trust is to be managed and distributed while he or she is alive and upon death. The trust’s grantor (or creator) retains the power to freely amend and revoke the trust as well as to reacquire its assets. This means he or she can change the terms of the trust at any time or, if desired, cancel it completely.

In New York, the same person can be both the grantor and sole trustee so long as one or more other person holds a beneficial interest (can be vested or contingent – for the present or future). A lifetime trust will be deemed to be irrevocable, which generally means it cannot be amended or revoked by the grantor, unless it expressly provides that is revocable.

The Revocable Living Trust only controls assets titled in the name of the trust. Upon the death of the grantor, it becomes irrevocable and, unlike a Last Will, does not need to go to probate. The trust’s assets will be available for immediate distribution after the death of the grantor, subject to insuring sufficient assets are available to pay estate taxes and debts. This can result in a significant saving’s to the decedent’s estate.