K. Gabriel Heiser
Attorney, author, Medicaid asset protection planning
K. Gabriel Heiser, J.D., is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.
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Question
My husband is on Medicaid using a qualifying income trust account. How do I pay taxes or file taxes?
The QIT is considered a “grantor trust” for federal income tax purposes. As such all items of income are reported on the grantor's... The QIT is considered a “grantor trust” for federal income tax
purposes. As such all items of income are reported on the grantor's individual income tax return and a separate tax return for the trust is not needed. see more
purposes. As such all items of income are reported on the grantor's individual income tax return and a separate tax return for the trust is not needed. see more
Question
Is a durable POA and POA the same thing?
The word "durable" in this context means that the POA will be effective even if the principal (i.e., the person who signed the... The word "durable" in this context means that the POA will be effective even if the principal (i.e., the person who signed the POA) becomes mentally incapacitated. Note that there are two types of such POA: one that is effective immediately, and one that is "springing," i.e., only becomes effective upon the incapacity of the principal. see more
Question
Mom was on Medicaid she just passed. Dad needs Medicaid now Will the state take their mobile home?
According to the federal Regulations that cover Medicaid, "A home is any property in which an individual (and spouse, if any) has an... According to the federal Regulations that cover Medicaid, "A home is any property in which an individual (and spouse, if any) has an ownership interest and which serves as the individual's principal place of residence. This property includes the shelter in which an individual resides, the land on which the shelter is located and related outbuildings." Thus, a mobile home is governed by the exempt house rules mentioned by others, here. see more
Question
Can the bank go after our estate after my husband and I pass away?
If the document specifies that the loan is "non-recourse," then the bank is limited to recouping the outstanding balance of the... If the document specifies that the loan is "non-recourse," then the bank is limited to recouping the outstanding balance of the loan strictly from the collateral, i.e., the value from the sale of the lot. Otherwise, they can attempt to obtain any shortfall after sale of the lot by filing a claim against the estate of any of the borrowers on the loan. see more
Question
My brother and I own a house 50/50. Will the house automatically pass to one of us if the other dies?
There are two types of joint real estate ownership: (i) tenants in common, and (ii) joint tenants with rights of survivorship (JTWROS).... There are two types of joint real estate ownership: (i) tenants in common, and (ii) joint tenants with rights of survivorship (JTWROS). Only the second one will avoid probate and have the property vest in the survivor. Check the deed and see what it says and then double check with an attorney. He/she can tell in one minute by reading the deed and understanding any possible quirks in your state real estate law, and such quick consultation will not cost much at all. see more
Question
Will Medicaid take your pension, social security, car and savings account?
A single individual may not have more than $2,000 of "countable" assets in order to qualify for nursing home Medicaid. One car of... A single individual may not have more than $2,000 of "countable" assets in order to qualify for nursing home Medicaid. One car of any value is exempt, as is the home (up to a value of $560,000). All personal property, furniture, furnishings, pre-paid funeral/burial, is exempt, also. But all income (pension, Social Security, etc.) must go to the nursing home, and if you qualify for Medicaid, that program will pick up the difference in cost. see more
Question
My brothers wife has Alzheimer's but he never got a POA before she became incapacitated. What can be done now...
If the assets are JTWROS (Joint Tenancy with Right of Survivorship) they pass outside of probate and immediately (upon the death of the... If the assets are JTWROS (Joint Tenancy with Right of Survivorship) they pass outside of probate and immediately (upon the death of the other co-owner) are owned fully by the surviving co-owner. Thus, any will of the wife is irrelevant. see more
Question
How do you determine how much to charge a parent who has moved in with you?
You are entitled to charge her for your services, but you need a written contract that spells out your duties. As for payment, check around... You are entitled to charge her for your services, but you need a written contract that spells out your duties. As for payment, check around and see what it would cost her to hire someone in your area to do the same things. As long you do not charge more than that, you are ok with Medicaid. see more
Question
Can Medicaid place lien on home owned solely by spouse?
So long as your mother outlives her husband, the house is protected and the state cannot come after it for recoupment of Medicaid payouts... So long as your mother outlives her husband, the house is protected and the state cannot come after it for recoupment of Medicaid payouts on his behalf. However, regardless of the pre-nup (ignored by law for Medicaid purposes), if she happens to pre-decease him, he is entitled to his spousal share per state law (varies per state, but typically 1/2 to 1/3 of all her assets). If her will bypasses him, he is treated by Medicaid as if he received the property and then gifted it to the actual recipients. That would cause him to lose his Medicaid. see more
Question
Is there an advantage to owning a home versus renting when it comes to having to pay for a spouse's elderly ca...
Taking funds that otherwise are countable for purposes of determining Medicaid eligibility and purchasing a home (now an exempt asset) can... Taking funds that otherwise are countable for purposes of determining Medicaid eligibility and purchasing a home (now an exempt asset) can indeed be a great way to protect the assets. However, there are complications when a spouse is involved. I recommend you read a copy of my eBook on this very topic, "Protecting Your Home," part of my Medicaid planning eBook series. see more
Question
Is there now a look back period for applying for VA benefits?
Here is a link to the Proposed Regulations of the VA regarding this issue:... Here is a link to the Proposed Regulations of the VA regarding this issue: https://www.federalregister.gov/articles/2015/01/23/2015-00297/net-worth-asset-transfers-and-income-exclusions-for-needs-based-benefits
The VA has not yet issued the Final Regulations but is expected to do so this year. See this article: http://blog.lawyerswithpurpose.com/2016/07/income-vs-asset-transfer-lookback-when-the-va-questions-income-prior-to-the-effective-date.html see more
The VA has not yet issued the Final Regulations but is expected to do so this year. See this article: http://blog.lawyerswithpurpose.com/2016/07/income-vs-asset-transfer-lookback-when-the-va-questions-income-prior-to-the-effective-date.html see more
Question
How can I protect my house if I go into a rest home?
It IS possible to protect the house from Medicaid liens and estate recovery! First of all, in some states, the deed simply needs to reflect... It IS possible to protect the house from Medicaid liens and estate recovery! First of all, in some states, the deed simply needs to reflect that upon the owner's death the house passes by right of survivorship to someone else. In all states, if the house has been in an irrevocable trust for at least 5 years before the owner applies for Medicaid, then there is no transfer penalty AND there is no estate recovery possible against the house.
However, if the owner needs to apply before that five-year period is over, then they may be stuck owing the government for its Medicaid outlays on the owner's behalf. Thus, early planning is vital!
I discuss all of these techniques in my eBook "Protecting Your Home--Estate Recovery", I highly recommend this to you. Best of luck! see more
However, if the owner needs to apply before that five-year period is over, then they may be stuck owing the government for its Medicaid outlays on the owner's behalf. Thus, early planning is vital!
I discuss all of these techniques in my eBook "Protecting Your Home--Estate Recovery", I highly recommend this to you. Best of luck! see more
Question
My cousin's sister put their mothers dividend check for the estate into her own account. What happens now?
It was a mistake of the bank to allow deposit of the check into the account of someone who was not the named payee. I would start out by... It was a mistake of the bank to allow deposit of the check into the account of someone who was not the named payee. I would start out by going to the bank, first. If you cannot get any resolution from them (i.e., reimbursement of the full amount of the check), then you must demand reimbursement from the sister. Unfortunately, if she refuses, you will have to hire an attorney at least to send a demand letter to the sister. Frequently that is sufficient to get the desired result without having to go through the costs of a full-blown legal action in court. see more
Question
Can I divorce my incompetent husband?
The answer varies from state to state. Some states do not permit the divorce of a person adjudged to be incompetent/incapacitated, while... The answer varies from state to state. Some states do not permit the divorce of a person adjudged to be incompetent/incapacitated, while others do indeed permit this. Thus, you need to find out the law in your own state on this issue. see more
Question
What are the Medicaid requirements regarding assets?
There are different rules for married couples vs unmarried/single individuals. A single person cannot have more than $2,000 in countable... There are different rules for married couples vs unmarried/single individuals. A single person cannot have more than $2,000 in countable assets, which excludes one car, the home, furniture/furnishings, jewelry, etc. Note that different states have different rules for such things as IRAs, 401(k)s, etc.
I have contributed many articles to this website that discuss various topics related to Medicaid planning, which you may find helpful: https://www.agingcare.com/members/GabrielHeiser
Best of luck! see more
I have contributed many articles to this website that discuss various topics related to Medicaid planning, which you may find helpful: https://www.agingcare.com/members/GabrielHeiser
Best of luck! see more
Question
How to protect my assets if admitted for long-term care?
As one of the Expert Contributors to this site, I happen to have just the book for you: How to Protect Your Family's Assets From... As one of the Expert Contributors to this site, I happen to have just the book for you: How to Protect Your Family's Assets From Devastating Nursing Home Costs: Medicaid Secrets. I wrote this book for folks like you who need to know both the rules and the planning techniques to save as much money as possible while qualifying for Medicaid. Best of luck in this difficult process! see more
Question
Is it too late for me to draw up a caregiver agreement?
A caregiver agreement is a good idea, but it will only (possibly) shield the transfers to you from your mother from being Medicaid gifts to... A caregiver agreement is a good idea, but it will only (possibly) shield the transfers to you from your mother from being Medicaid gifts to you from the date the agreement is signed. You should try to find out the exact requirements of a caregiver agreement in your state, by inquiring at the state Medicaid department. Most states require that it be in writing, not exceed the normal cost for such care in your locality, specify your obligations, etc.
You also run into a problem of authorizing the agreement as agent under the POA, since you are hiring yourself, a clear conflict of interest. see more
You also run into a problem of authorizing the agreement as agent under the POA, since you are hiring yourself, a clear conflict of interest. see more
Question
Is life insurance award given to children from one parent's policy eligible in Medicaid 5 year look back?
1. The amount of proceeds paid to your mother is obviously her money and has to reported to Medicaid. 2. As for the portion of the... 1. The amount of proceeds paid to your mother is obviously her money and has to reported to Medicaid.
2. As for the portion of the proceeds that passed to the children, the only way that such insurance proceeds could be countable (as a transfer from your mother, subject to the five-year lookback rule) is if in your state life insurance proceeds form part of the "statutory share" of a deceased spouse that the surviving spouse is entitled to. In most states, life insurance paid to anyone other than the estate of the insured would not be part of this calculation and thus would not be deemed a transfer from your mother (because she was entitled to a portion of those proceeds under the statute and did not actually receive them). see more
2. As for the portion of the proceeds that passed to the children, the only way that such insurance proceeds could be countable (as a transfer from your mother, subject to the five-year lookback rule) is if in your state life insurance proceeds form part of the "statutory share" of a deceased spouse that the surviving spouse is entitled to. In most states, life insurance paid to anyone other than the estate of the insured would not be part of this calculation and thus would not be deemed a transfer from your mother (because she was entitled to a portion of those proceeds under the statute and did not actually receive them). see more
Question
How much does a power of attorney document cost?
While cheap forms from the office supply store are certainly available, and probably better than nothing, the small fee that a good elder... While cheap forms from the office supply store are certainly available, and probably better than nothing, the small fee that a good elder law attorney charges for his or her preparation of a durable power of attorney for financial and legal matters would be money well spent. The cost for just that one document can be between $75 and $200, most likely, depending on the needs of the client. However, you will certainly also need a durable power of attorney for health care and probably a living will.
If the individual for whom you are seeking the POA has any assets and you think that nursing home care may become needed at some point in the future, the attorney will include some necessary clauses in the POA to facilitate certain types of Medicaid planning. Without those clauses, such planning may be impossible to accomplish.
I include a section on durable powers of attorney in my book, Medicaid Secrets, which you may find helpful. see more
If the individual for whom you are seeking the POA has any assets and you think that nursing home care may become needed at some point in the future, the attorney will include some necessary clauses in the POA to facilitate certain types of Medicaid planning. Without those clauses, such planning may be impossible to accomplish.
I include a section on durable powers of attorney in my book, Medicaid Secrets, which you may find helpful. see more
My husband is on Medicaid using a qualifying income trust account. How do I pay taxes or file taxes?