What is the Caregiver Child exception?

Sheryl - you really have a couple of issues going on…your mothers health and long term care options and then your own personal life situation. What is best for one may not be best for the other…...

1. I'm assuming you are concerned about the ownership on the home because you do not have your own home to return to. This is a pretty consistent question on this site. It can be really scary if you have basically gone off the grid to care for a parent and years from now find yourself possibly homeless and broke.

and 2. What can mom do about the house that can work best for her and then for you? Now do you have existing DPOA & MPOA for her? If so, then you are going to have more flexibility & options. But if mom is not competent & cognitive, there will be issues even getting a DPOA or MPOA or doing other legal (like an Enhanced Benefit Trust or a "Lady-Bird Deed" if your state even allows for those) or any documents being viewed as valid if someone (a sibling or nephew or even a neighbor who may expect to inherit) were to challenge the change of ownership or a change in her will.

So what is your & mom's situation? Also what's the situation on the home…like is there a mortgage & also is your mom right now able to pay from her income & assets for everything on the home or could you if mom wasn't there to pay? Your options - which is going to need elder law advise in the end - really will depend on the answers to these ?'s. So what's the story?

What is more important is what is on her Will. Read it over. Also, is she on Medicaid? Medicaid will allow the child caregiver who has been there for more than 2 years to remain, to reside in the home. Medicaid is administered with different rules in each state, so check your state Medicaid rules.

(My name is not on the deed to her home. Should I have that done (and how?).

Many factors come into play for what your asking to do.
Regardless of her age she has dementia.With dementia,finding a attorney willing to or attempt to change a Will or Trust is rare to none.Depending on the type & state of her dementia.She maybe legally incompatent because,of the dementia.Again,finding a attorney to change a Will or Trust is rare to none.That's too risky for any attorney to attempt.With her dementia,placing your name on her deed to her home really shouldn't be attempted for many reasons.
(1):How long do you plan to attempt to keep her out of a nurcing home?
(2):How much money does she have saved for her retirement?
(3):Will she ever exceed her funds then,attempt to apply for Medicaid?
(4):Is she on Medicaid now?
(5):Do you see her in a nurcing home or on Medicaid in the next 5 yrs from now?
Nurcing home cost varies from $3,000 - $8,000 plus per month.Amount of a elderly's savings will exceed fast paying for nurcing home cost not including any other health cost.If she would ever exceed her funds and need Medicaid.Medicaid will go back 5 yrs of her spending/assets.
Here's a simple example what I mean,
Let's say she places the deed to her home into your name.Two yrs later she needs to go into a nurcing home.Another two yrs goes by she exceeds her funds and need to apply for Medicaid inorder to stay in the nurcing home.Medicaid will seek the home to pay for further healthcare cost including nurcing home cost.Deed in your name or not doesn't matter Medicaid will seek the home and reverse that transaction.Doesn't matter if she gives you the home or sells it to you for a buck.It's still a transaction no matter a gift or a buck.Medicaid goes back 5 yrs seeking any large amounts uncalled for.If you can prove that you lived in the home over a yr prior of Medicaid or nurcing home.Medicaid can't touch the home because, you lived in it over a yr in some states.Other wise what your seeking is a Medicaid Trust agreement.Have a attorney create a Medicaid Trust.She still owns the home until she dies.After death the home goes to you.That's a Medicaid Trust.Find a attorney to create the trust.But,keep in mind the 5 yr Medicaid look back.Within 5 yrs Medicaid can & will reverse that Trust to seek healthcare cost.
Good luck!
You need to call to talk to a attorney.

In general the Caregiver exemption allows for a member of the family who provided full-time care for a period of time (usually 2 years) to an elder who later on entered a NH and who's NH stay is being paid for by Medicaid to file an exemption to any MERP (Medicaid Estate Recovery Program) claim or lien on their homesteaded property that is in their name. Here is where it gets sticky, in some states filing Medicaid exemptions to MERP have to be done after the person dies. Why? Because the house is an exempt asset for Medicaid when they are alive so it is not till they die that the property becomes non-exempt. So if that is the position in your state, then once mom goes into a NH on Medicaid, she will have to do her co-pay or SOC (share of cost) to the NH of her income. You will have to pay for everything on the house on your own till after mom dies, then you file a caregiver exemption from MERP to get the ownership changed to you. Other states allow upon the Medicaid application approval for a change in the property ownership to be done assuming everything is there and valid for the caregiver exemption.

Right now if you do anything to the deed that makes you full or partial owner AND IF mom applies for Medicaid before 2019, then she will have a transfer penalty for gifting the house to you based on the value of the house & % ownership.

But whatever the route, you will need to have your own income to be able to pay for everything on the house once mom in NH and then afterwards when she dies.
For many, there just isn't the money for the possible years & years that a parent is in a NH and family member stays living in the house. This is why you hear "Medicaid made me sell momma's house" but in reality Medicaid cannot force you to sell the house, it is rather that family cannot afford to maintain the house.

Now the caregiving may require documentation that it was full-time, so if you have another job in their period of time no exemption. And many states require that you provide to the state a letter from the primary physician of the Medicaid recipient that the level of caregiving you provided for the required period of time was necessary and required. From what I've heard, sometimes MD's will not do these letters as they are being asked to do a letter for something in the past. Often the past could be years & years ago too. You need to clearly speak with their doc and have something now & at the beginning of your caregiving that shows her physicians orders for caregiving. Understand?

There are also lots of other exemptions to MERP. Like if you are low-income heir to the property. Some states have property ceiling before MERP is done, other states have "hardship" exemptions for property that needs work done to be sellable. If the house is empty, then whomever pays for costs on the home (taxes, insurance, etc) can file an exemption for those costs (they too can also file a claim or lien in probate for those costs too). Your state Medicaid MERP site should have a list on all this. MERP is very time sensitive and you have to respond to the letter of intent within whatever the specific timeframe on the letter otherwise the MERP claim or lien is viewed as totally valid. What happens then kinda depends on how MERP is run and whether it is contracted out.

ok, the will will NOT keep your inheritance (money, property, stocks, etc) out of probate. I never knew this, but it won't.
If you can avoid probate try to. That is where the court holds this inheritance and reviews it. If anyone contests the will, then you have to get an atty to fight for your inheritance. I don't know if your mom has a substantial amount or not, but it is something to consider. I would call a lawyer for a 15 min consultation on this. Get an estate planner or elderly services lawyer.
As far as the house, you can get the "Ladybird Clause" which is basically a paper that states when she dies the house will transfer automatically down to you, no probate. It will become your property in the event of her death.
If there is a bank account (checking, saving or both) see if you can go on as a co-owner now, so there is no issue when she passes on.
If there are stocks or investment papers, make sure you are the beneficiary on all of them. You and mom will have to call each one to get the form to do that.
I hope this helps. This was how it was all explained to me.

I have lived with my mother for 9 years and she was healthy 6 of the years. She has needed help the past 3 years - especially walking and bathing etc. But nothing is documented with a doctor. She transferred the house to me and my husband 6 months ago and is in a nursing home now - Is she eligible for Medicaid - do we fit under the Caregiver rules.

Kim - each state administers its Medicaud program uniquely under an overall federal guideline. How a caregiver exemption is done will depend on your state.

Right now what the caseworker is going to see is a transfer of real property of whatever value the tax assessor has placed on last tax bill. So mom is ineligible for Medicaid. There is going to be an appeal period on this in which you will need to establish caregiving exemption. Just how & what depends on your state.

Some states will clear caregiver upon the application with proper documentation of need supported by letters from the elders physician or social worker. Other states will make you all quit claim the property back to mom so she owns the exempt asset till she dies and then the caregiver exemption is done after they die, ( again with documentation that caregiving needed) so you have to keep track & document all costs on the house from now till however long mom lives. Or - for even more fun in all this - some combination of these 2 ways.

I'd suggest you speak with the caseworker ASAP to see what the game plan needs to be. They may be able to suspend the application till you get the paperwork needed in too. After all they will have all sorts of paperwork for ineligibility & penalty to deal with, so suspending an application (if possible) is good for everbody. The caseworker needs to know that you are not trying to be sneaky but rather misinformed on property issues. Good luck.