Elder Law / Medicaid Planning

Elder law encompasses several closely related practice areas, including Medicaid planning, estate planning, asset protection and special needs trusts. Our goal in this area of the law is to help seniors and the people who love them make important decisions regarding long-term healthcare, assets, real property, savings accounts, pension plans and other issues. While every one of our clients comes to us with a unique set of goals and concerns, they typically need assistance in one of two areas: crisis planning or proactive planning.

Crisis planning

Generally, people who need an elder law attorney in a crisis situation have suffered a debilitating event or injury, such as a stroke, and have lost the ability to function without the assistance of trained personnel. What makes this unfortunate situation a crisis is that the individual and/or family are unable to provide the necessary assistance, either personally or financially. The function of the Elder Law Attorney in a crisis situation is to work with the client and the client’s family to manage the client’s assets and qualify for Medicaid assistance.

To qualify for Medicaid in the state of Georgia, you must be a citizen 65 years of age or older, or disabled, blind or a resident or qualified alien. In addition, a single applicant may not have more than $2,000.00 in monthly income or more than $2,022.00 in resources (assets), excluding their residence (maximum $500,000.00). If assets and income exceed these levels, the elder law attorney must develop a plan to manage the assets to ensure compliance with the law. Married couples must meet certain requirements as well. If one spouse is admitted for care, the spouse who continues to reside at home may have no more than $109,560.00 in assets, excluding the residence, which is considered an exempt asset. Other factors that may impact Medicaid eligibility include gifts made within 5 years of the Medicaid application, payment of debts, improvements to a residence, purchase of a residence, ownership of a vehicle, and more.

At Anthony Kirkland, Attorney P.C., we can help you cope with a crisis situation and obtain the assistance from Medicaid or Veterans Benefits you may be entitled to. Whether you are a senior, or a family member concerned about the well-being of an elderly loved one, we are here to help you.

Proactive planning

Proactive planning is for people who want to protect the assets they have accumulated over a lifetime of hard work before they need long-term or nursing home care. Protecting assets that exceed Medicaid eligibility requirements is possible if done properly and within the rules and regulations permitted by law. At Anthony Kirkland, Attorney P.C., we can help you avoid the mistakes and pitfalls that may jeopardize your eligibility for Medicaid or Veterans Benefits and lead to an unnecessary loss of assets.

For example, you may think that you can give some of your money or other assets away to children or other loved ones in an attempt to “spend down” your assets and qualify for public assistance. This is an all too common mistake, because any outright gift made within 5 years of application for Medicaid assistance will not be exempt and is subject to a penalty. Another common problem is when an individual sells his house to his children for less than fair market value. If you sell appreciated assets to a child or friend for less than fair market values, this too will be subject to a penalty.

Let’s look at a possible scenario. John, age 87, decides to sell his house, which is valued at $550,000.00, to his 3 children for $30,000.00. This is an obvious under-valued sale, and as such it will be subject to a penalty. Given that the current penalty divisor is $4,916.55, John will have to private-pay for the first 112 months.

It is possible and feasible to make a gift to certain types of Trusts that will forever shield the assets from inclusion in your asset portfolio. One such legal Trust is known as the Medicaid Asset Protection Trust (MAPT). This type of trust is also known as an Income Only Trust and is irrevocable. Consequently, it is possible to shield assets funded into the MAPT from consideration during the Medicaid application process. Appreciated assets may include a paid-for residence, stocks and bonds, and other such assets. Persons who create a MAPT do not lose their capital gains exclusion or their step-up basis by execution and funding of the MAPT.

Estate recovery

Applicants who obtain Medicaid assistance must be aware that the state of Georgia has implemented a program for the recovery of assistance actually paid during the applicant’s stay at a nursing home facility and/or other assisted living arrangements. To the extent that Medicaid has paid funds on an applicant’s behalf, the state may collect its portion, including an applicant’s residence, by liquidating assets of the applicant’s estate.

At Anthony Kirkland, Attorney P.C., we have the legal knowledge and experience to help you in a crisis situation or with proactive planning. We invite you to contact us for information about how we can assist with your particular situation.

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