Medicaid Planning Plus ™

Protecting your assets from probate PLUS lawsuits PLUS nursing home expenses

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Frequently Asked Questions about Medicaid Planning Plus

Q: What is Medicaid Planning Plus™?

The Medicaid Planning Plus Network™ is made up of attorneys who are personally selected, vetted and approved by Certified Elder Law Attorney and asset protection expert, Evan Farr. Moreover, Medicaid Planning Plus™ licensed attorneys have the training necessary to provide their clients with the most cutting-edge Incapacity Planning documents, Revocable Living Trust documents (to avoid probate), pre-crisis, and crisis planning solutions.

Medicaid Planning Plus™ Attorneys may also be referred to as Elder Planning Plus™ and Veterans Planning Plus™ Attorneys. Like this website, VeteransPlanningPlus.com and ElderPlanningPlus.com also list all licensed Elder, Medicaid, and Veterans Planning Plus™ Attorneys in the United States. If you are a veteran, or if you are interested in Medicaid-related news, you may want to bookmark our Veterans and Medicaid news feeds.

Q: What is a Medicaid Planning Plus™ Attorney and what services do they offer?

Medicaid Planning Plus™ Attorneys bring more to their practice than an expertise in the appropriate area of law. They bring to their practice knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they take into account and empathize with the physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are almost always tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you.

Medicaid Planning Plus™ Attorneys offer many different documents, legal instruments, services and solutions depending on a client’s needs, and that is what separates them from the pack of other elder law and estate planning lawyers out there. The four main categories of services offered by Elder Planning Plus™ Attorneys are:

  • Incapacity Planning to avoid the disastrous legal and financial consequences that often accompany incapacity.
  • Revocable Living Trust Estate Planning to help clients avoid probate, and for the orderly distribution of assets at death through Wills, Trusts, and other legal mechanisms.
  • Living Trust Plus™ Estate Planning to help clients plan for their long-term care expenses before they actually need long-term care. The Living Trust Plus™ provides general asset protection immediately upon funding, and Medicaid asset protection five years after funding. You are a candidate for Level 3 Planning provided you are living independently and have no significant health problems that are likely to require nursing home care within the next five years. ; and
  • Benefits-Focused Asset Protection™ for clients who need public benefits like Medicaid and Veterans Aid & Attendance as soon as possible. Comprehensive Medicaid Asset Protection and Life Care Planning for a year at a time, including completion and filing of the Medicaid application and all documents and actions required to obtain Medicaid. If appropriate, Veterans Benefits Planning and the filing of a Veterans Aid and Attendance Pension application.

Q: Why is it so difficult to find an attorney specializing in “Medicaid” planning?

There are relatively few Elder Law Attorneys who specialize in Medicaid Asset Protection, as it is very difficult to do this type of planning, and most attorneys don't want to take the time to master the Medicaid eligibility rules, which are widely acknowledged to be the most complex and confusing legal rules in existence. See, for example, Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981), in which the United States Supreme Court called the Medicaid rules "an aggravated assault on the English language, resistant to attempts to understand," or Rehab. Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994), in which the Fourth Circuit called the Medicaid rules one of the "most completely impenetrable texts within human experience."

However, Elder Planning Plus™, Medicaid Planning Plus™, and Veterans Planning Plus™ Attorneys are educated, trained, and equipped to provide guidance and leadership at a time when clients may be amidst a crisis situation.

Q: Where can I find a Medicaid Planning Plus™ Attorney?

Please visit our state directory by clicking here. If there is not a Medicaid Planning Plus™ Attorney licensed in your state, please be patient; we are continuing to expand our network. You may wish to send us a message using the “Ask Evan Farr” form on the right-hand side of your screen. If you already have been working, or are familiar with an estate planning or elder law attorney in your area. Feel free to let us know and we may be able to reach out.

If you are an attorney and you have been practicing estate planning and/or elder law, you may be eligible to become a Medicaid Planning Plus™ Attorney. To apply, click here.

Q: What should I do if I am an attorney interested in offering Benefits-Focused Asset Protection™ to my clients?

If you are an attorney and you have been practicing estate planning and/or elder law, you may be eligible to become an Elder Planning Plus™ Attorney. To apply, click here.

Q: What do I need if my primary goal is to avoid the consequences that accompany incapacity?

If your primary goal is to avoid the public and potentially embarrassing process of “living probate,” proper powers of attorney documents need to be in place. An Elder, Medicaid, and Veterans Planning Plus™ Attorney can help you make the best decisions when choosing an agent to act on your behalf when you cannot act for yourself. A power of attorney prepared by an Elder Planning Plus™ Attorney contains special provisions allowing your agent to engage in Asset Protection Planning and Public Benefits Planning on your behalf, including the ability to make unlimited uncompensated transfers in an effort to protect your assets from the forced liquidation that might otherwise be required if you were to enter a nursing home.

Elder Planning Plus™ Attorneys offer a General Power of Attorney, which is durable, unlimited, and HIPAA-compliant, and complete Medicaid asset protection powers, including full gifting and full trust creation and termination powers. Elder, Medicaid, and Veterans Planning Plus™ Attorneys use the proprietary Four Needs™ Advance Medical Directive to most effectively foster communication.

Q: What happens to me if I become incapacitated before Incapacity Planning Documents are prepared?

If you or a loved one is incapacitated before Incapacity Planning Documents are prepared, the courts become involved. The process of “living probate” is public and can be potentially embarrassing. Essentially, without proper Incapacity Documents in place, an incapacitated person must be appointed a legal guardian by the court system.

Q: What happens to me if I become incapacitated after my Incapacity Planning Documents are prepared?

If you have the proper documents in place, incapacity should not be any more difficult for you and your family members than the incapacity or disability itself. On the other hand, not having the correct documents in place can cause undue stress. A general power of attorney is a much better way to deal with incapacity than a guardianship or conservatorship. If you become disabled, a general power of attorney authorizes your agent to act on your behalf and sign your name to financial and/or legal documents. Having a general power of attorney will generally avoid the need to go through the time consuming, expensive, and publicly embarrassing process where someone has to go to court to have you declared mentally or physically incompetent and then seek appointment to serve as your legal guardian and/or conservator, who is then subject to ongoing court supervision.

Q: Is a Will or Revocable Living Trust preferable? Are there options I am unaware of?

Most Americans do not realize that a will does not protect assets nor does it allow loved ones to avoid the dreaded probate process. “Probate” is the process the court follows to administer wills. “Intestacy” is a term used to refer to the situation that arises when no will exists. By statute, the laws of each state dictate who the “default” beneficiaries of an estate will be. A will must be probated in every state where real estate is located, plus the place where the decedent died, making it a cumbersome and old-fashioned document. Many Americans have created a will for no reason at all, because their intentions reflect the intestacy statutes or a will simply is not capable of accomplishing their goals.

By contrast, a Revocable Living Trust does not need to be probated. Unlike a Living Trust Plus™, however, it cannot protect assets. Since the settlor (the creator) has access to the trust principal (assets funded into the trust), the settlor’s creditors do too.

You may be unaware of the estate planning options and capabilities of the Living Trust Plus™ and Benefits-Focused Asset Protection™. A Living Trust Plus™ is an irrevocable living trust, meaning it is effective for general asset protection in all 50 states, and can be used to protect assets from the expenses of long-term care in all states except Connecticut and Minnesota.

Benefits-Focused Asset Protection™ encompasses the process of protecting assets from having to be spent down in connection with entry into a nursing home or other long-term care costs, while also helping ensure the best possible care and highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. This process is designed to be an ongoing, life-long process. Although the initial Asset Protection Planning may take as little as a few weeks or few months, the service is designed to continue until death.

Q: Does a Will avoid probate after death?

No. If you die without a will or trust, the state determines who will be your ultimate heirs. This distribution plan can be found in the intestacy statute of each state. The transfer of your property is accomplished through a court supervised proceeding called probate that takes a year or longer in many states. These proceedings generally are expensive and time consuming.

Probate - the court-supervised public proceeding used to change title to assets from the name of an individual who has passed away into the name of the living beneficiaries - can be avoided. Probate is also the process by which creditors of a decedent file claims to collect their debts and where interested parties who have a complaint regarding the deceased can file a complaint (a will contest). Even without a contest, probate can be costly and time consuming.

Q: Does a Revocable Living Trust do anything to protect my assets?

No. A Revocable Living Trust does not protect assets. Since the trust is “revocable,” it is still under the control of the settlor (creator). As a result, the settlor’s creditors can reach the assets in the revocable living trust, too.

Q: I’m still healthy. Why should I care about avoiding nursing home expenses?

70% of Americans who live to age 65 will need long-term care at some time in their lives, and because 50 percent of all couples and 70 percent of single persons become impoverished within one year after entering a nursing home. The median net worth of the average 65 year-old is $232,000. Consider that 40% of Americans will enter a nursing home before they die, and that as of 2010, the average annual nursing home room was nearly $85,000. What this means is, Americans are not equipped to pay for their long-term care expenses if they do not have long-term care insurance. For many Americans, long-term care insurance is not available, but the Living Trust Plus™ or Benefits-Focused Asset Protection™ is.

Q: What exactly is the Living Trust Plus™ and how does it work?

The Living Trust Plus™ is an irrevocable asset protection trust that you create while you are living, that protects your assets from probate, lawsuits, and creditors (including long-term care creditors). You receive all ordinary income (interest, dividends, rent, and royalties) from the trust assets (at least annually, but as often as desired), including the right to live in any trust-owned real estate, but you cannot have direct access to principal. If either you or your spouse has direct access to principal, the assets in the trust would be deemed "countable" for Medicaid eligibility purposes and would be completely available to almost all other creditors. Prohibiting direct access to principal is the key to why the Living Trust Plus™ works -- for general creditor protection and for Medicaid asset protection.

Q: How can an irrevocable trust be revoked?

The Living Trust Plus™ is an irrevocable trust, and many people, including lots of good estate planning attorneys, think that means the trust can never be revoked. But the fact is that the term "irrevocable" means only one thing - that the trust cannot be unilaterally revoked by the creator of the trust. Although the Living Trust Plus™ is irrevocable and can't be revoked unilaterally by the settlor, under common law and under the Uniform Trust Code, a non-charitable irrevocable trust can be modified, terminated, or partially terminated upon the consent of the trustee and all trust beneficiaries.

Q: What kinds of people use the Living Trust Plus™?

Typically clients who are in their mid-60s to mid-80s, already retired, and worried about the potential catastrophic cost of long-term care, and they want to protect the nest egg that they've been saving for a rainy day. The rainiest possible day for most people is the day they start needing nursing home care, and if they want to truly protect their nest egg and have it actually benefit them when the time comes, they know they need to do something to shelter that money. The Living Trust Plus™, for many people, is the best way to do that.

Q: Will long-term care insurance pay for my long-term care?

Many Americans don't have long-term care insurance because they're too old to afford it or to qualify for it, or they have a medical condition that prohibits them from getting it. For many clients, the Living Trust Plus™ is the best possible alternative to purchasing long-term care insurance, or Benefits-Focused Asset Protection™ for those who need government benefits immediately.

Q: What kinds of public benefits are available to pay for long-term care expenses?

ALL Medicaid is the joint state and federal program that pays for long-term care. Veterans Aid & Attendance benefit is part of the Veterans Pension Benefit that may be applicable to former service members. Many people are unaware that: Medicare does not pay for long-term care; There are dozens of asset protection strategies to qualify a person for Medicaid benefits; and the quality of care a Medicaid recipient receives is no different than that of a private-pay patient.

Q: Is it too late to start Medicaid Planning once a person is living in a nursing home?

The truth is that it is never too late, and typically 40% to 100% of assets can be protected! About 4.2% of Americans age 65+ reside in a nursing home – a statistic that is projected to climb over the next decade, according to the U.S. Bureau of the Census. For someone to rule out the possibility of protecting their assets simply because they or a loved one is in a nursing home is a notion we should all be striving to dispel.

Q: How can I be sure my best interests are in mind and that my planning isn’t being done just to protect an inheritance?"

Elder, Medicaid, and Veterans Planning Plus™ Attorneys have a passion for protecting the dignity and quality of life of the Elder, which is what Medicaid Planning is all about. Medicaid asset protection planning is not about "cheating" or "gaming" the system; it is about understanding and using existing laws that enable us to help our clients preserve their dignity and self-worth. The expenses of long-term care caused by a chronic illness are often catastrophic because in the United States, citizens do not have a right to basic long-term care.

Q: Must a nursing home resident must ‘spend down’ virtually all assets on nursing home care before qualifying for Medicaid?”

Elder Law Attorneys who devote their practices to Medicaid Asset Protection legally and ethically help nursing home residents protect significant assets every day. For a married client, it is possible to protect 100%, regardless of how the assets are titled, without forcing a divorce. For an unmarried client, 40% to 70% of a client's assets can be protected.

Q: Will Medicare pay for my long-term care in a nursing home?

Many people have experienced or heard about the fact that Medicare often is used to pay for short-term rehabilitative care delivered in a nursing home. However, the reality is that Medicare only pays for short-term rehabilitation, and only under very limited circumstances, and only for a limited time. Medicare does not pay a single penny for long-term care, ever. At most, a Medicare recipient might receive up to 100 days of Medicare-covered or partially-covered care in a rehabilitation facility, but never “long-term” care. When it comes to the public perception, many people don't even realize that Medicare and Medicaid are completely separate programs with completely separate rules and regulations. Even among those who do have a pretty good understanding of Medicare, Medicaid is still widely misunderstood

Q: Is it true I can only give away $13,000 per year?

Although it is true that some gifts will disqualify a person from receiving Medicaid for a specific period of time, there are extremely important exceptions and extremely complex Medicaid rules that apply. The misunderstanding that gifting is capped at $13,000 per year is a complete fallacy. The annual gift tax exclusion only applies for tax purposes, and has nothing whatsoever to do with Medicaid.

Q: If I’ve made any gifts in the past 5 years, can I still qualify for Medicaid?

Depending on the donee and the type of property, gifts of any amount may be just fine under your state’s Medicaid rules. For example, the following types of gifts are generally not penalized at all: gifting assets to a spouse; gifting assets to a disabled child or a trust for a disabled child; making regular gifts in certain small amounts; gifting a residence to a caregiver child; gifting a residence to a sibling on title; and numerous other exceptions. There are also many asset protection strategies that involve making intentional gifts that are penalized, but doing so in a controlled fashion under the guidance and supervision of a knowledgeable Medicaid and Elder Planning Plus™ Attorney.

Q: Is the Veterans Aid & Attendance pension available to help pay for my long-term care?

If you are a Veteran or spouse of a Veteran and you need assistance in your home, or are living in or considering moving into an Assisted Living Facility or Continuing Care Retirement Community, please contact an Elder Planning Plus™/ Veterans Planning Plus™ licensed attorney to see if you might qualify for the Veterans Aid and Attendance Special Pension Benefit or the Veterans Housebound Special Pension Benefit.

Q: What percentage of my loved one’s assets can be protected if they are already paying for and receiving long-term care?

This varies from client-to-client, but as a general rule, for a married couple Elder Planning Plus™ Attorneys can protect one-hundred percent (100%) of a couple’s assets; for an unmarried client, anywhere from forty percent (40%) to seventy percent (70%) of your assets can be protected.

Many people have heard that you must do Asset Protection planning three or five years prior to entering a nursing home. This is simply not true. There is a Medicaid rule known as the "lookback period," which is currently 5 years. However, this does not mean you have to begin your planning 5 years prior to the nursing home; rather, it means there are penalties, in the form of periods of ineligibility for Medicaid, for certain types of planning done within five years prior to applying for Medicaid.

Elder Planning Plus™ Attorneys are fully cognizant of these rules and penalties and all other Medicaid requirements, and are very careful to comply completely with the law.

Q: What Is the Amount of the Aid and Attendance Benefit?

In 2011, the Veterans A&A Pension can provide:

  • $1,644 per month ($19,736 per year) for a qualified veteran;
  • $1,949 per month ($23,396 per year) if the veteran is married;
  • $1,057 per month ($12,684 per year) for a surviving spouse of a qualified veteran;
  • $2,540 per month ($30,480 per year) if both spouses are qualified veterans.

Q: How do I File a Claim for the Aid and Attendance Benefit?

Filing a claim for the Veterans Aid and Attendance Pension Benefit is complex and time-consuming. If you want to do it correctly, it's important to get qualified assistance. Just knowing which form to fill out and how to complete it is a complex endeavor in itself. Even if the proper form is completed, failure to check a single box may result in a complete denial of your claim.

The application process involves: obtaining evidence of prospective, recurring medical expenses; appointments for VA powers of attorney and fiduciaries; and a thorough understanding of the application process. Typically, qualification for this benefit involves reallocation of assets and shifting of income in order to qualify, and these reallocations may have significant impact on Medicaid eligibility.

Given that many veterans who need the Aid and Attendance Benefit will eventually wind up also needing Medicaid, this process should not be attempted without the help of a qualified Veterans, Medicaid, and Elder Planning Plus™ Attorney who thoroughly understands both the Veterans Aid and Attendance Benefit and the Medicaid program, as well as the interaction between these two benefit programs.

Q: Where can I Obtain the Veteran’s Discharge Documents (DD-214 Report of Separation)?

One of the document needed to commence a claim for this benefit is the Veteran's Discharge Documents (DD-214 Report of Separation). If you don't have an original DD-214, most veterans and their next-of-kin can obtain free copies of their DD Form 214 and other military and medical records by going to the following web site: http://tinyurl.com/getDD-214.

Q: Who Is Eligible for the Aid and Attendance Pension Benefit?

To receive the Aid & Attendance Special Pension Benefit or Housebound Special Pension Benefit, a veteran must have served on active duty, at least 90 days, at least one day of which occurred during a period designated as wartime.

There must have been an honorable discharge. Single surviving spouses of such veterans are also eligible. If younger than 65, the veteran must be totally disabled. If age 65 and older, there is no requirement to prove disability. However, the veteran or spouse must be in need of regular aid and attendance due to: Inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back etc.); inability to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.

Not all of the disabling conditions in the list above are required to exist. It is only necessary that the evidence establish that the veteran or spouse needs "regular" (scheduled and ongoing) aid and attendance from someone else, not that there be a 24-hour need.

Determinations of a need for the Aid and Attendance or Housebound Benefit is based on medical reports and findings by private physicians or from hospital facilities. Authorization of Aid and Attendance or Housebound Benefits is automatic if evidence establishes the claimant is a patient in a nursing home or that the claimant is blind or nearly blind or having severe visual problems.

Q: Is Aid and Attendance Only For Low Income Veterans?

No, and this is the primary reason that this benefit is so widely misunderstood. If you speak to a Veterans Service Representative in a regional VA office and ask them about the Veterans Aid and Attendance benefit, they will typically ask for your household income. When you tell them your household income, they will compare it to a chart and most often tell you that you earn too much income to receive the benefit. While the information they provide may be technically accurate, what they typically don't explain is the "income" for Veterans Administration purposes (sometimes called IVAP or "adjusted income") is actually your household income minus your recurring, unreimbursed medical and long-term care expenses. These allowable, annualized medical expenses are such things as health insurance premiums, home care expenses, the cost of paying a family member or other person to provide care, the cost of adult day care, the cost of an assisted living facility, or the cost of a nursing home.

To be able to receive the Veterans Pension with Aid and Attendance benefit, the veteran household cannot have adjusted income (i.e., household income minus unreimbursed medical expenses) exceeding the Maximum Allowable Pension Rate -- MAPR -- for that veteran's Pension income category. If the adjusted income exceeds MAPR, there is no benefit. If adjusted income is less than the MAPR, the veteran receives a Pension income that is equal to the difference between MAPR and the household income adjusted for unreimbursed medical expenses. The Pension income is calculated based on 12 months of future household income, but paid monthly.

Q: How is the Aid and Attendance benefit calculated?

The monthly award is based on VA totaling 12 months of estimated future income and subtracting from that 12 months of estimated future, recurring and predictable medical expenses. Allowable medical expenses are reduced by a deductible to produce an adjusted medical expense which in turn is subtracted from the estimated 12 months of future income.

The new income derived from subtracting adjusted medical expenses from income is called "countable" income or IVAP (Income for Veterans Affairs Purposes). This countable income is then subtracted from the Maximum Allowable Pension Rate -- MAPR -- and that result is divided by 12 to determine the monthly income Pension award. This award is paid in addition to the family income that already exists.

Q: What is “The Asset Test?”

There is an asset test to qualify for the Aid & Attendance Pension Benefit. Any asset or investment that could be easily converted into income might disqualify the claimant. An asset ceiling of $80,000 is often cited in the media as being the test. However, the $80,000 has to do with VA internal filing requirements and is not an actual test. In reality, there is no dollar amount for the test and any level of assets could block the award.

Q: Are certain assets exempted from the asset test used to qualify for the Aid & Attendance Pension Benefit?

Yes. Licensed Veterans, Medicaid, and Elder Planning Plus™ Attorneys can explain in more detail whether the assets you own are countable. This is an important consideration for the veteran, because some assets that are considered to be exempt by Medicaid are considered to be countable by the Veterans Administration. Exempt assets generally include a primary residence, vehicles, and difficult-to-sell property.

Q: When it comes to the transfer of assets, does the VA impose a “look-back” penalty?

VA will allow assets to be transferred or converted to income in order to meet the asset test. There is no look-back penalty for transferring assets as there is with Medicaid. However, because the veteran or the surviving spouse might need to apply for Medicaid in the future, it is extremely important to consider future Medicaid eligibility when transferring assets or converting assets to income in order to obtain eligibility for Veterans Aid & Attendance.

Veterans, Medicaid, and Elder Planning Plus™ Attorneys can help you avoid both Aid and Attendance rejection and Medicaid penalties associated with reallocating assets.

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