Does 5 year look back allow for family members to pay themselves $1,000/ month for gas reimb and time if no caregiver agreement was made?

TryHarder1...

I am sorry to hear of your dilemma. It is one that often surprises families when not aware of the consequences of financial decisions made prior to applying for public benefits.

As you consider the below please know that only a licensed attorney can provide legal advice or draft legal documents with respect to the transfer of assets or income to achieve Medicaid eligibility. The following is NOT to be considered legal advice and is provided for educational and informational purposes only.

That said, the answer to your question depends on several factors including the state in which your mother lives. I only serve those living in Florida and I share my experience in the hope that it may benefit you and, if not, perhaps others.

In addition to the state your mother lives in, my experience in Florida is that the outcome of this situation may also vary depending on the District in which the case is processed as well as upon the Specialist actually processing the case.

In Florida, the policy is that asset transfers of over $500 per month are considered "assets transferred for less than fair market value"; in other words, a gift. Unless it can be proven otherwise, the state will then asses an "eligibility penalty" based on the sum of the assets transferred over the 5 years prior to application for Medicaid. The penalty levied is expressed in a number of months the applicant will deemed ineligible to receive Medicaid benefits and is determined as follows:

$ amount of assets transferred divided by the "Medicaid Pay Rate" (in Florida presently $9,485) = number of months of penalty. From what you stated above your mother's penalty would look like this: $96,000 divided by $9,485 equals 10.12 months of ineligibility. Ouch.

From my view, those facing this situation have two options. I'll give you the more complicated first.

If you do not have receipts evidencing that the transferred funds were used for your mother's benefit you might consider submitting an affidavit detailing the circumstances and how the funds were spent. Include any additional information you can including, perhaps, testimony from others familiar with the situation. You want to essentially bombard them with evidence. As stated above, the outcome is uncertain...even if you did have proper evidence.

Another, perhaps less complicated approach with a more certain outcome, would be to claim a "Hardship Exemption". Blessed be this provision in policy which states: "When application of the transfer of assets or income provisions discussed in this chapter would cause an undue hardship on the applicant/recipient, the transfer provisions do not apply." Say what? Yes indeed. If it can be demonstrated that, to paraphrase, the applicant's life, health, or welfare would be at risk if determined ineligible for Medicaid long-term care services the transfer penalty will not be imposed.

This exemption can be requested at the time of application or after denial via a "Fair Hearing". The request must be properly evidenced and documented.

Please note that care agreements can only be drafted on a prospective basis, not perspective basis. In other words, the agreement will not cover transfers made before the date of the agreement; only those made after the date of the agreement.

If your mother still has funds left, establishing a care agreement now may make a lot of sense in that while receiving Medicaid benefits funds will still be required to support her. Florida permits lump-sum transfers in full advance satisfaction of the contract which can be extremely helpful in making sure such funds are available to her.

Internecine conflict between siblings also occurs more often than one would think. If your brother does not wish to follow financial recommendations may I kindly suggest that you concentrate on your mother's care, wash your hands of the financial matters, and let him deal with the fallout.

You cannot just decide to pay yourself, there should have been agreement in place and what the $1,000 was paying for, even if the documents allow it. Start looking and requesting copies of bills that you were paying for her and the cancelled checks or bank statements.

You need an elder law attorney. Withdrawing that much. Money will be looked at by Medicaid. I hope you have receipts.

If there is evidence to indicate family with withdrawing 1,000 a month I think you are in trouble. There would have to be careful agreements and contracts involved. You need to see an elder law attorney I believe.

I understand. Did you live with your Mother the last 5 years? That makes a difference. What you need to do now is take a deep breath and let it takes its course. Is Mom in a facility now or are you still taking care of her? Are you applying for Medicaid for her now? Talked to a lawyer or case manager? Let us know, we could give you more advice on how to proceed.

In PA you are allowed to "gift" money to a loved (relitive) one. No questions asked. Check with your attorney

Here's another thought: your brother is POA. It's his responsibility to handle this.

He needs to seek an attorney on handling Mom's business. If you're the one receiving the $1,000 a month, you may need to seek an attorney about your responsibilities, but first make your brother do the work and suffer the anxiety then he can notify you of any action you must take--if any.

What does the POA form say? Some allow a POA to take a salary and reimburse reasonable expenses. So there may not be an issue with the look-back

This sounds like exploitation to me. Get all your receipts together & any other proof you have. I agree with UsedupDIL

If you lived with Mom, it may not be an issue. So try to relax a little bit and focus on getting care for Mom. That's the most important thing. How do you get Mom the care she needs. There are options available. Get her into a situation where she can be taken care of and then start focusing on yourself.