Elder Law Attorney

Long-term nursing is a valuable medical resource for patients in need. However, if a patient does not have a “long-term care” insurance policy to cover the expenses for such care it can be a financial strain on the patient and the patient’s family. 

Nursing home care (e.g., care while in a nursing home facility) in New York often costs well over $150,000 annually, and “in-home care” often costs about $75,000-$85,000 annually. Without a plan in place, these medical costs can devour a family’s life savings at rapid speed.

There is a program known as “Medicaid,” which is a joint state and federally funded program, that can cover many of these medical expenses. Medicaid is a need-based program with strict eligibility requirements. When making an application for Medicaid benefits through your local County Department of Social Services, the government will review your application by conducting a review of your assets and income. 

Eligibility for Medicaid benefits is the first part of the consideration; the second part of the consideration is whether or not an applicant’s assets will become available for Medicaid to recover a financial reimbursement for the Medicaid services rendered upon a person’s decease.

When talking about Medicaid, you will often hear many myths and half-truths about the transfer of assets, various “look back” periods whether the government will review assets transferred out of an applicant’s name for a certain period of time leading up to the application. On this point, many people have heard of the infamous “five-year look back” period. 

Unfortunately, a lack of planning in advance of a health crisis often results in patients being unable to wait until the “lookback period” has passed and without the resources to pay for such care out of personal assets. Good planning can assist clients with these concerns.

Attorneys who practice in the area of “elder law” are attorneys who help clients prepare and plan for unique age-related issues faced by senior citizens through a variety of planning tools and guidance. Medicaid planning and eligibility is often a core part of this planning. Our team will look carefully at your income, assets and finances and assist you with a strategy for your needs. Among the tools available, trusts, wills, promissory notes, annuities, caregiving arrangements, and life estates will be considered.

Medicaid & Elder Law Attorney FAQs

Medicare and Medicaid are two separate, government-run programs that are operated and funded by different parts of the government and primarily serve different groups.

Medicare is a federal program that provides health coverage if you are 65+ or under 65 and have a disability, no matter your income.

Medicaid is a state and federal program that provides health coverage on a means-tested approach.

If you are eligible for both Medicare and Medicaid (dually eligible), you can have both. They will work together to provide you with health coverage and lower your costs.

When an application for Medicaid coverage is submitted, Department of Social Services will conduct a review of all assets owned, previously owned, transferred, or gifted by the applicant for a “certain” period of time immediately preceding the Medicaid application. That “certain” period of time depends on whether the application is for “Community” (in home) or “Institutional” (in a skilled nursing facility).

Applications filed for “Community” Medicaid after January 1, 2022 will have a “lookback” that will be phased in to eventually be 30 months (2.5 years). Once the new “community” Medicaid lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback. For applications filed before January 1, 2022, transfers of assets after Oct. 1, 2020 will not trigger any transfer penalty because there is no lookback. Initially on January 1, 2022, the lookback will be 14 months, requiring records back to Oct. 1, 2020. Every month the lookback period will increase by one month until it is 30 months in April 2023. Applicant and spouse must submit all financial records during the lookback period, even if the spouse is not applying for Medicaid or is doing a spousal refusal.

Applications filed for “Institutional” Medicaid are presently subject to a 60 month (5 year) lookback review of assets.

Application is made through the Department of Social Services in the County in which the applicant resides.

If no estate or long-term care planning has been completed can a person still obtain long term care benefits through Medicaid?

The short answer is yes in certain circumstances. The longer answer is that while an applicant may achieve eligibility for Medicaid coverage, a lack of planning may expose the applicants assets and income for Medicaid recovery and spending.

This is an area of legal practice where attorneys guide and advise aging persons (most often 65 years of age and older) with issues that are often faced by persons of similar age.

A “business success plan” is a written plan (often corporate documentation and estate planning documentation) that establishes the procedure to be followed when a business owner deceases, retires, or becomes disabled.

A “healthcare proxy” is a document with which a person appoints an agent to legally make healthcare decisions on behalf of such person, if the person is incapable of making and executing the healthcare decisions stipulated in the proxy.

A “business success plan” is a written plan (often corporate documentation and estate planning documentation) that establishes the procedure to be followed when a business owner deceases, retires, or becomes disabled.


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