HOMESTEAD PROTECTION FOR NURSING HOME RESIDENTS

Most people realize that a home is not counted as a resource when a person applies for Medicaid. In other words, Medicaid allows a person to own a certain very small value of assets plus a home of any value. Let’s say that the elderly person who has lived in his or her home now needs a nursing home. In NY, Medicaid cannot count the home as a countable resource (and therefore create ineligibility because of excess resources) if the applicant clearly expresses his or her intent to return home at some future date. But what if the applicant can not express intent one way or the other?

It would appear that a smartly written power of attorney which either sets forth the principal’s wish to return home or gives authority to the agent to effect that intent on the part of the applicant makes some sense. Most powers of attorney are patently defective because clients believe that one power of attorney is as good as the next when, in fact, the contrary is true. In protecting the elderly and their assets, a power of attorney properly drawn is about as important an action as a person could take. In the absence of a good power of attorney, the family will be substantially restricted in how assets may be protected.

Even after the homestead is protected, don’t forget about the fact that Medicaid may place a lien on the home depending upon who is living in the home at the time of the applicant\recipient’s death. There must be a qualified exempt family member living in the home to avoid the lien. That’s why we do not leave the home as an available asset to begin with. The home ought to be transferred at the earliest possible date so as to avoid the lien. We may, in the future, discuss some strategies for avoiding the lien as well.