The Law Has Changed: Read About This “Medicaid Near Miss”

HNWElder Law, Medicaid Eligibility and Asset Protection Planning

Fredrick P. Niemann, Esq., NJ Medicaid Attorney

Here’s a story I was told by a colleague.  Mary was 85 years old and had been cared for by her granddaughter, Jane for several years.  As Mary’s health deteriorated mentally and physically, Jane devoted more of her time to caring for Mary, putting her own life on hold in some respects.  Mary’s family agreed that Jane would look after Mary.  Eventually, however, Jane could no longer care for Mary.  Mary was admitted to a hospital and then a nursing facility.  Because she had no assets, Jane needed to make application for Medicaid benefits and that’s when the problems began.

When Jane met with a Medicaid caseworker, she was asked about Mary’s finances.  Jane explained that in 2004, Mary sold her house for $125,000.  Jane moved Mary to an over 55 community where Jane lived nearby.  Jane quit her job to look after Mary and had power of attorney for Mary.  Their finances were commingled, however, and Jane, not understanding the Medicaid rules, did not keep records of how money was spent.  Recognizing that caring for Mary was a full time job, Mary’s assets and income supported both Mary and Jane.  Mary also gave Jane gifts of several thousand dollars on a few different occasions as a symbol of her love and appreciation of Jane.

The Medicaid caseworker incorrectly told Jane that Mary was not eligible for Medicaid, that all the money from the sale of the house would be treated as a gift subject to a Medicaid penalty.  She also suggested that Jane might be held responsible for “taking” Mary’s money.  Jane was panic stricken.  She didn’t know enough to assert her rights and give Medicaid the proper information.  As bad as things were, Mary and Jane had one thing going for them, timing.  Because the home sale and spend down of the proceeds all occurred before February 8, 2006, the transfer of Mary’s assets were subject to penalties that began to run when the transfers were made.  In their case, those penalties had already expired by the time the client applied for Medicaid.  Had those transfers occurred under the new law, no Medicaid would have been available to Mary for 12 months or more, leaving Jane with no way to pay for her care and the nursing home with a resident unable to pay their bill.

The next case that comes to us with these set of facts will likely fall under the new rules and would not end as favorably.  So what can you do?  Consult with an elder law attorney and understand the rules well before Medicaid is even a possibility on the horizon.  Once properly educated, you can take the steps to avoid the mess Mary and Jane faced or fix the mistakes.  If you wait until it’s time to file for Medicaid, it could very well be too late.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or

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