Don’t Lose the Family Home Due to Medicaid Estate Recovery.

Ever since the COVID-19 virus hit our state this spring, I have heard many instances of families facing the loss of the family home after a parent or grandparent has died while receiving Medicaid benefits to help pay the cost of a long term nursing home stay. This is especially unfortunate because there are legal methods to protect family assets and avoid Medicaid Estate Recovery against the home.

The problem is that preventative steps need to be taken before the Medicaid recipient dies in order to avoid the loss of the home. This is not information about which the North Carolina Department of Health and Human Services (DHHS) is likely to educate the public. There are multiple reasons why this is the case:The first reason is that DHHS is not in the business of giving legal advice. The state is quite willing to become the beneficiary of the equity in the Medicaid recipient’s home after the Medicaid patient dies.

Therefore, unless the family members are aware of the problem, they may be very surprised to find out the family home will be lost when the State of North Carolina files a Medicaid Estate Recovery claim with the Executor of the Will or the Administrator of the Estate.

This is where proper planning with an Elder Law attorney can be so valuable. Many people also refer to us as Elder Care attorneys, and that may be appropriate since we do care about our clients.

There is no “one size fits all” solution to Estate Planning and Elder Law issues. Every family deserves to have their individual circumstances addressed. There could be a disabled adult child who needs to be protected after the death of the Elder parent. There may be beneficiaries who have problems with addiction or handling financial assets. Experienced Estate Planning attorneys can develop strategies to address the unique needs of each family.

We try to find ways to keep elder clients as independent as possible and help them dictate the circumstances of their own care. We try to find ways to prevent elder abuse, including preventing elder financial abuse. Planning done in advance of any need for long term care services is usually far more effective than waiting until the crisis is right on the doorstep.

In addition, there are some planning techniques that can only be done while the potential care recipient is still competent and able to participate in the planning. Husbands and wives also have certain planning techniques that they can do for their spouse that cannot be done by other family members. Unfortunately, the spouse who needs long term care is not always the first spouse to die. Because of this, both spouses should address planning techniques that can protect the surviving spouse.

There are certain Medicaid rules that have been in place ever since the program was passed in 1965. Many experienced estate planning attorneys who do not focus their legal practice on Medicaid benefits and Medicaid Estate Recovery issues may not be aware of the rules to which Medicaid recipients and their families will be subject. Elder Law is a recognized legal specialty. Families may be well-advised to seek advice from a board-certified specialist, or at least someone who concentrates his or her practice in this area of law.

In the event you are finding your family in the middle of a long-term care crisis situation, keep in mind that it might not be too late to preserve family resources. Some of the techniques available to those who planned years in advance might not be available, but there are still crisis planning techniques to consider.

Contact our offices to make an appointment with me or one of the other attorneys in our firm, by calling us at 828-258-0994 for our Asheville, North Carolina office; or 828-696-1811 for our Hendersonville, NC office. You may also view information on our website at https://strausslaw.com/practice-areas/medicaid-elder-law/.