If you’re healthy, you’ve probably never really thought about long-term care or Medicaid planning. However, statistically, the vast majority of individuals will end up needing nursing home care at some point during their lives. Some people are able to apply and qualify for Medicaid benefits without hiring an attorney to assist them.

However, there are many individuals who could greatly benefit from having an elder law attorney guide them in creating and implementing a long-term care or Medicaid plan. Below are a few situations where you might want to consider hiring an elder law attorney:
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1.  If you are in immediate need of full-time nursing home care, have more than $15,000 in countable assets, and need Medicaid benefits to help pay for your care, it might be worthwhile to hire an experienced elder law attorney to assist you. Your attorney can complete your Medicaid application and serve as a liaison with the state Medicaid office and nursing home facility. This move can improve your chances of preserving as many assets as possible as well as increasing your chances of receiving all Medicaid benefits for which you might be eligible. 
2.  If you are living at home and your spouse requires full-time nursing care in a facility, an attorney can help expedite the Medicaid application process to reduce costs. Additionally, an attorney can show you ways to protect your financial interests so that you can live more comfortably at home and not feel the need to spend all of your assets down on your spouse’s care.
3.  If you and your spouse both require care, hiring an experienced attorney to help with the Medicaid application process and spenddown rules can save your adult children time, money and stress. 
4.  If you and your spouse are healthy and not in need of immediate care, an elder law attorney can provide you with long-term care planning advice that can help you avoid missing time-sensitive asset protection opportunities.
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How much will an elder law attorney cost? In most situations, attorney’s fees rarely exceed the cost of one to two months of long-term nursing home care.

For more information on long-term care planning and Medicaid issues, please contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.

What can long-term care planning or Medicaid planning do for you?

For starters, it can save you thousands of dollars on current or future long-term care. According to a 2020 Genworth study on nursing home costs, the average semi-private, full-time nursing home room in Kansas costs approximately $6,691.00 monthly ($80,292.00 annually). With this type of price tag, people are starting to realize the importance of planning for their end-of-life expenses. 

If you are healthy and in no need of immediate care, you might want to seek advice on long-term care planning from an experienced elder law attorney. Upon examining a comprehensive list of your assets and their values and listening to your objectives, your attorney may suggest any number of legal strategies to help you accomplish your goals. A few of these suggestions might include purchasing a long-term care insurance policy, creating and funding an irrevocable Medicaid Asset Protection Trust, establishing a gifting plan to family members, transferring assets by beneficiary designations and transfer-on-death designations, or forming some type of business entity. The type of legal strategies recommended for you will depend on your unique situation.

Medicaid planning is the term commonly used to preserve assets for individuals already residing in or having an impending need for full-time, skilled nursing home care. Planning at this stage is often referred to as crisis planning. Once again, an elder law attorney will need a comprehensive list of your assets and their values, as well as information on any income streams that you have. Depending on your goals, assets, income, life expectancy, and other issues unique to your situation, your attorney might recommend purchasing a Medicaid annuity, initiating an asset gifting program, purchasing a prepaid funeral plan, having home improvement repairs done on your residence, or any other number of planning choices.

All of these are viable options that many people are unaware they can utilize, particularly once someone has already been placed in a long-term care facility. However, be cautious when moving forward with a Medicaid spenddown, because if not done correctly, it can result in a refusal of benefits. Hiring an experienced elder law attorney is a good way to ensure that mistakes are avoided so that you can qualify more easily for Medicaid while preserving the greatest amount of assets allowed by law for your family.
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If you have questions about Medicaid planning or long-term care planning, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

​Q:        My father’s mental status has been declining this past year and now I’ve discovered he doesn’t have any planning in place. Does his diminished mental capacity mean it is too late for him to do estate planning?
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A:         Not necessarily. If your father’s attending physician has not declared him incompetent, and he still has some capacity, your father may be able to execute legally binding estate planning documents. There are different levels of capacity required for an individual to sign some legal documents versus others. For example, it takes more capacity for an individual to sign a Last Will and Testament than a General Durable Power of Attorney for financial decisions. To determine what level of capacity your Dad has and, thus what planning he is legally competent to execute, he will need to meet with an experienced estate planning attorney. Some of the questions an attorney may ask while visiting with your father include:

1. Does he understand what he is signing and what the effects of that will be?
2. Can he articulate a reason for his decisions regarding his estate plan?
3. Does he have a general idea of what property he owns?
4. Can he remember who his family members and beneficiaries are?
5. What is his degree of mental alertness, especially on the signing day? (Does he know the day, understand where he is and what he is in the office to do?)
6. Are his estate planning decisions consistent with his basic values and prior life decisions?

Part of an estate planning attorney’s role is to evaluate a client’s competency (or incompetency), as legal capacity or competency requires a subjective opinion provided by a trained attorney. Sound mind a/k/a capacity is determined on a situation-by-situation basis, as legal capacity can fluctuate, even from day-to-day. Attorneys are trained to assess a client’s legal capacity and proceed to a signing only if they believe the client meets the standards of competency necessary for the execution of a client’s legal documents.

It’s common for family members of clients who have diminished capacity to request appointments at very specific times of day because their mental clarity is best at that time. For example, they may struggle to understand certain events in the morning but exhibit a good understanding in the afternoon. Mental capacity can fluctuate due to any number of factors: medication, illness, lack of sleep, stress, time of day, etc... It is possible that a client is legally competent one day and incompetent days or even hours later. Failing to have full capacity all day, every day does not prohibit a person from executing estate planning documents. If, in an experienced attorney’s opinion, the client meets the basic threshold of legal competency at the time of signing documents, those documents are legally binding.

Because your father has some diminished capacity, it is extremely important that you choose a highly reputable estate planning attorney to assist him with his estate planning. If you have a contentious family who may dispute your father’s estate planning, make sure to let your attorney know so that they can take every precaution to determine legal capacity and to document his/her findings in the client’s file. If your family is contentious, we recommend that your father meet privately with his attorney so that there is no doubt that the contents of his planning were voluntarily and willfully made by your father, without undue influence from you or anyone else.

If you have questions about diminished capacity or any Kansas estate planning topic, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

​In a perfect world, everyone would establish a long-term care plan well in advance of needing such care, all the necessary finances to pay for any such needs would be in order and everyone in the family would be prepared to help execute that plan at any given moment. But the reality is that most people procrastinate on any type of planning that focuses on the possibility of serious illness or death.
 
When an unplanned event happens that requires immediate long-term care, and in the absence of an existing plan, long-term care ‘crisis’ planning can help you navigate the days to come. What is Long-term care ‘crisis’ planning? This term is based on the notion that an event occurred that now requires you to make decisions regarding long-term nursing home care, including addressing the cost of such care, in a short period of time. 
 
Your first step might be to seek advice from professionals who are trained in the area of long-term care planning and stay current on the best methods for addressing your situation, as the rules and regulations of Medicaid are complicated and change frequently. Below are a few of the ways a trained professional might help you manage your long-term care crisis situation:

• Education. Maybe you just want more information about long-term care and Medicaid. A trained professional can walk you through the process of what to expect and educate you, so that moving forward you feel confident making educated decisions regarding your loved one’s care.

 

• Spenddown. You are looking to apply for Medicaid. A trained professional can provide guidance on how your assets may impact your Medicaid application approval.

 

• Spousal Division of Assets. You are still living at home and are looking to apply for Medicaid on behalf of your spouse who is in the nursing home. A well-trained professional can provide you with the needed assistance with a division of assets between spouses.

 

• Medicaid Application. You need assistance with a Medicaid application. A professional highly educated in Medicaid and estate planning law can work closely with you and the nursing home while filing your loved one’s KanCare application (KanCare is the program through which the State of Kansas administers Medicaid) to try to make the process as smooth and easy as possible. 

 

• Asset Preservation. Trained professionals develop a plan to preserve your loved one’s assets while also working towards Medicaid eligibility.

 
For more information on long-term care crisis planning, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and Elder Law. We focus our practice on providing clients with the best legal advice on estate planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, 1031 Exchanges, and related matters.

​November is Long-term Care Awareness Month. Statistics show that between 50%-70% of our population who reach age 65 will require long-term care at some point in their life. Losing all of one’s assets to pay for nursing home care is a legitimate concern for people. With the cost of a private room in a Kansas nursing home at approximately $70,000-$90,000 annually, it’s no wonder why senior citizens are looking for help to preserve at least some of their assets for their heirs.
 
Let’s review some facts about long-term care planning, specifically Medicaid planning. The purpose of Medicaid planning is to preserve your assets and set up your affairs in such a way that the State will pay the majority of your nursing home care costs, if or when the time comes. With good Medicaid planning, you should need only to contribute your income toward nursing home care costs. With Medicaid planning, the goal is to avoid selling your assets to pay for your long-term care. If you have a spouse still living at home, then Medicaid planning may also allow you to preserve income for that spouse rather than paying it to the nursing home.
 
Married Couples:
When married couples consider Medicaid planning, the “best case scenario” is to retain the benefits of all their assets and still have Medicaid pay for nursing home care when the time comes. To accomplish this, all planning and funding should be completed five (5) or more years prior to one of the individuals needing full-time nursing home care. If you have less than five (5) years before an anticipated nursing home admission, other options exist to preserve assets, but those options are more limited and vary, based on circumstances.
 
Unmarried persons:
A single person can also utilize Medicaid planning, although the percentage of assets preserved may vary, again depending on the circumstances.
 
Elder law generally, and Medicaid planning specifically, is a complex body of law and an area that sees frequent rule revisions. The application process can be a paperwork nightmare, so having an experienced professional to guide you through the system is advisable. You are not required to use an attorney to plan for possible nursing home admissions. However, most nursing home and social services professionals are not trained to provide sophisticated Medicaid planning advice, which can protect the greatest amount of your assets. Additionally, not just any attorney is qualified to advise you on your long-term care options. Look for an attorney specifically trained in Elder law and Medicaid planning issues to provide you with a plan of action to preserve the greatest amount of your assets, as allowed by law. 
 
If you have questions about Medicaid or long-term care planning, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

If your loved one is facing admission to a nursing home for long-term care and you’re concerned that you won’t have enough money to cover their expenses, there are a few things you should consider. With an average cost of over $5,600 per month for a semi-private nursing home room in Kansas (2019 Genworth Cost of Care Survey), very few of us could afford to private pay for a nursing facility for very long. KanCare is the Kansas Medicaid Program that you will apply to if you need government benefits to assist with payment in Kansas.

Too often, well-intentioned friends, neighbors and non-elder law attorneys or other professionals make recommendations on how to apply for Medicaid benefits to cover nursing home expenses that result in a denial or extended delays in benefits, both of which result in unnecessary expenses to the applicant. To prevent this from happening to you, we’re sharing some things to consider:

1. Consider who is giving you advice. Everyone seems to have advice to give in this situation, because many people have experience with someone going into the nursing home. However, Medicaid rules change frequently and planning is extremely specialized to each individual’s personal needs and their assets. Thus, what worked for your neighbor’s grandmother WILL NOT work exactly the same for your loved one.
2. Seek knowledge from someone who is going to look out for your best interest. This is typically going to be someone that you hire, like an experienced elder law attorney. While most nursing homes offer to file your Medicaid application for free, you should keep in mind that their goal is simply to get you eligible for benefits so that they can continue to receive payment for their services. It isn’t their job, nor do they have the time or the resources, to put an elaborate Medicaid plan in place. Alternatively, an elder law attorney hired by you is there to create a plan that allows you to preserve the maximum amount possible and establish eligibility quickly and efficiently in the most cost-effective manner.
3. Be careful when spending down assets for eligibility and be honest on your application. Recommendations on how to spend down assets in order to qualify for Medicaid benefits from anyone other than a highly trained individual, like an elder law attorney, can result in a prolonged denial of Medicaid benefits. If an individual does become eligible, but it is later determined that they improperly spent down assets that were not reported correctly, they could find themselves facing fraud charges. Elder law is a complicated body of law and without a full understanding of the rules, you can easily and unintentionally make costly mistakes.
4. If you have filed an application and been denied, don’t despair. While it is better to not be in this situation, it doesn’t mean that all hope is lost. Because elder law is not generally well understood by the public, mistakes commonly happen with people who are sincerely trying to help their loved one receive the financial assistance they need for nursing home care. As the phrase goes, “You don’t know what you don’t know.” As quickly as you are able, you will want to make an appointment with an experienced elder law attorney to discuss whether an appeal is possible.

Now that you are armed with more knowledge, remember to consult with an experienced elder law attorney should you need to file for Medicaid benefits in the future. More than one client has told us after we corrected an inaccurately filed Medicaid application, “I wish I would have just come to see you first!”

If you have questions about Kansas elder law or Medicaid planning, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

Q:        My brother-in-law told me that his assets are safe from any Medicaid claims that he might encounter in the future for nursing home care because he has a Revocable Trust. I also have a Revocable Trust, but I didn’t think it protected my assets from Medicaid claims.  Who is correct?

A:        You are. A Revocable Trust does NOT protect your assets from a Medicaid recovery claim against you. A Revocable Trust allows the creator/grantor (you) to make any changes to the Trust at any point in their lifetime, as long as they are competent. Because you have so much control over a Revocable Trust and are the beneficiary of the trust during your lifetime, Medicaid law allows for a claim to be made against assets held in a Revocable Trust just as they could make a claim over assets owned in your individual name. If you or your brother-in-law are concerned about protecting your property and/or other assets from future Medicaid claims related to nursing home or hospital expenses, you need to visit with an estate planning attorney well versed in elder law matters.

​Generally speaking, if you want to protect certain assets from creditor claims, including Medicaid, your assets must be owned by an IRREVOCABLE Trust, which CANNOT be controlled by you in any way. There are Irrevocable Trusts designed specifically for individuals who are concerned about protecting family assets, such as farm and ranch property that has been in the family for generations, and minimizing the risk of losing those assets to pay for long-term nursing home care. Be aware that this type of planning typically involves making a gift and triggering the 5-year look-back for Medicaid eligibility, so time is of the essence. Postponing planning until it appears that long-term nursing home care is inevitable can significantly decrease your ability to protect many of your assets. However, if you are currently in such a situation where you are facing immediate nursing home admission, don’t despair, there may be other options available to you.

If you have questions, it is critically important that you seek out an attorney who understands the Medicaid system as it relates to elder care matters in your State. If you have questions about any estate planning or Medicaid planning matter in Kansas, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

Q: My mother is a relatively healthy 80 year old. A neighbor suggest that we transfer her home to me and have her retain a life estate interest, so she could avoid losing out on benefits from Medicaid, should she need nursing home care in the next few years. I am an only child and my father passed away years ago. What do you think about this idea?

​A: If the life estate deed is recorded at least five years before your mother requires a full-time nursing home care, this transfer should not bar her from Medicaid qualification. The rules on Medicaid qualifications for this type of situation are complicated to say the least. However, an overly simplified answer would be that her life estate interest will not be counted as a resource for KanCare (Medicaid program in Kansas) qualification purposes.

Maintaining your mother’s home while she is in the nursing facility could potentially strain your finances. If she uses a life estate deed, there are other issues you both should consider, including:

1.  Sale. If you plan to sell your mother’s home while she is alive, be aware that selling the house will require your and your mother’s consent. Your mother’s life estate interest has a value and such interest likely will then disqualify her from receiving KanCare benefits for a period of time, during which she will have to private pay for her nursing home care.

2.  Gifting and Capital Gains Tax. Remember, that even though you don’t have a tangible asset yet due to your Mom’s life estate interest, you have still been gifted the residuary value of the home. Property that is gifted during your mother’s lifetime does not get a step-up in basis at her death, meaning you will likely have to pay capital gains tax on the property if you sell it. The tax you will owe after the sale could be substantial and will depend on factors such as what your mother paid for the property when she purchased it and what you sell the home for. Additionally, this will result in a penalty if your mother goes into a nursing facility and needs to become Medicaid eligible within 5 years of making the gift.

3.  Death of Residuary Owner. What happens if your mother gifts you her home, maintains her life estate and then you die before she does? The property would then go to your estate, which may not be what your mother would want.

Instead of deeding the house to you and having your mother retain a life estate interest, your mother may want to consider creating an irrevocable trust and deeding the house to the trust. This gives you a lot more flexibility. The trustee could sell the house and the sale proceeds would not disqualify your mother from KanCare benefits. If the house is not sold, then when your mother passes away, the trust could be set up in such a way that you would receive a “stepped-up basis”, resulting in no capital gains taxes if and when you sold the house.

Be aware, that this type of trust is very complicated and not something that should be attempted on your own or without expert guidance. Please see an experienced long-term care estate planning attorney to determine the best course of action for your mother’s unique situation.
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For more information on Real Estate and Medicaid planning, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and focus our practice on providing clients with the best legal advice on estate planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

You’ve just come from taking your elderly mother to her doctor and learned that she needs to be admitted to a long-term care facility. Your mother isn’t a wealthy woman and you have no idea how she is going to pay for long-term care. This would be a good time to consult an elder law attorney and here’s why: 
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A good elder law attorney can help you devise a plan to pay for your mother’s long-term care, make suggestions on ways your mother can preserve some of her assets and which assets need to be liquidated, sold, etc. If your elder law attorney determines that your mother will immediately qualify for Medicaid benefits, she will need to provide the following information as part of the Medicaid application process:

1. Non-Financial Documents
  a. Identification – picture ID (driver’s license, state ID)
  b. Social Security card(s)
  c. Birth verification (birth certificate, baptismal certificate or school record with date of birth)
  d. Marriage license or death certificate/divorce decree of spouse
  e. Health Insurance Identification Card (for all insurance coverage including Medicare, Medicare                         Supplemental, etc.)
  f. Military discharge records including original Form DD-214
  g. Names, addresses, phone numbers of all children
  h. Listing of assets sold or given away in the last 5 years
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2. Legal Documents
  a. Most recent Health Care Power of Attorney, Living Will, General Durable Power of Attorney, Will
  b. Trust documents
  c. Business entity/partnership agreements
  d. Resident admission agreement (if in assisted living or nursing home)

Rumors, gossip and hearsay are your worst enemy when it comes to long-term care planning. Many people delay planning because they hear one thing or another from a family member or friend, but they never take the time to investigate whether the information is accurate or if it even applies to their own situation. Before you assume you won’t qualify for Medicaid benefits for nursing home care, or wouldn’t benefit from long-term care planning, do yourself a favor and visit an experienced elder law attorney to get the FACTS. In the meantime, here are a few common long-term care misunderstandings held by many clients:

1. To qualify for Medicaid benefits, I must get rid of all my assets. False. In Kansas, although you’re not allowed more than $2,000 in “countable assets” to receive Medicaid, not all of your assets are counted toward computing your eligibility. For example, in Kansas, your house is an exempt asset so long as your spouse resides there or there is a chance that you will return home. Other exemptions include assets that can’t be converted to cash, burial plots, business or income-producing property, household furnishings, personal property, pre-paid funeral plans and a vehicle. Further, if you are married, your spouse (a/k/a well-spouse or non-applicant) may keep a portion of your countable assets as his/her “community spouse resource allowance”. However, something everyone should keep in mind, is that many of the aforementioned assets lose their exempt status after death.