24 LONGISLANDPRESS.COM • NOVEMBER 2017 24 LONGISLANDPRESS.COM • SEPTEMBER 2017 24 LONGISLANDPRESS.CO M • SEPTEMBER 201-----------TUTU111
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The Importance of Retaining an Attorney to Prepare Your Medicaid Application
Many individuals are unfortunately
unaware of the fact that Medicare
will generally not cover the costs
of long term care. For example, Medicare
may cover up to 100 days of rehabilitation
in a skilled nursing facility so long as the
patient needs the skilled care. However,
if that patient requires care beyond
Medicare’s limit, then in the absence of
a long term care insurance policy, the
individual would be responsible for the
full cost of his or her care. Such care will be
unaffordable for many individuals because
many nursing homes in the area charge in
excess of $500.00 per day. Thus, Medicaid
may be the only option available to them.
Medicaid is a means-tested benefit; thus,
an applicant has the burden to prove that he
or she is financially eligible. In New York,
this requires submitting an application with
supporting documentation to the applicant’s
local department of social services. The rules
governing Medicaid are complex, and quite
often each county’s department of social
services interprets and/or applies these
rules differently. Therefore, it behooves an
applicant to retain the services of an elder
law attorney to assist with navigating the
Medicaid minefield.
A person is not required to retain a lawyer
to assist him with applying for Medicaid.
Many professionals such as social workers
can and do assist their clients accordingly.
Many people are tempted to retain the
services of a non-lawyer because they
believe it will save them money, but it is
important to note that only lawyers are
permitted to give legal advice.
Attorneys will not only assist their
clients in the preparation of their Medicaid
applications, they will also advise them
with respect to options that may allow the
applicant the ability to preserve all or a
significant portion of his or her assets by
reviewing their current estate plans and
advising them on the relevant elder care
and tax implications.
The following examples illustrate
why it is often in an individual’s best
interest to retain the services of an
experienced elder law attorney:
1. Rachel had very few assets other
than her home, and she needed to apply
for Medicaid home care. She hired a home
care agency who told her that they would
prepare her application for a small fee.
What the agency failed to do was advise
Rachel that when she died, her home
would pass through her probate estate
(i.e. in order for her house to pass to her
heirs, her will would need to be probated in
Surrogate’s Court). On her death, Rachel’s
will was probated. Medicaid filed a claim
against Rachel’s estate in order to recoup
the money it had spent on her care. Once
Medicaid’s claim was satisfied, there was
almost nothing left for Rachel’s heirs. An
experienced attorney could have advised
Rachel on how she could have protected
her home (through the use of a trust or
other vehicles) so that it would have passed
to her heirs in accordance with her wishes.
2. Jane was in her early 70’s and in
good health, but she was concerned she
would need long term care down the road.
She heard that Medicaid might attach a
lien to her home or make a claim against
her estate. Jane decided to transfer her
home outright to her children hoping
that if she needed care, the “look-back”
period would have passed and her home
would be protected. However, when her
children sold Jane’s home after her death,
they had to pay exorbitant capital gains
tax. Had Jane sought the advice of an
elder care attorney with experience in
the area of taxation, she would have been
advised of alternate planning techniques
which could have prevented her children
from experiencing such a negative tax
consequence.
It is almost never too late to take steps
to try to preserve at least some of your
assets in the event you need long term
care. If you would like to learn more, it
is advisable to speak to a knowledgeable
elder law attorney.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates, a law
firm that concentrates in elder law, estate
planning, Medicaid planning, guardianships,
estate administration, trusts, wills, and
real estate. The law firm can be reached at
718-261-1700, 516-466-4422, or toll free at
1-877-ELDER-LAW or 1-877-ESTATES.
Mr. Fatoullah is also a partner with Advice
Period, a wealth management firm, and he can
be reached at 424-256-7273.
By Ronald A. Fatoullah, Esq.
29
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