The Elder Law MinuteTM


Considerations When a Spouse Needs Nursing Home Care

By Ronald A. Fatoullah, Esq. and Stacey Meshnick, Esq.

Nursing home care in the New York Metropolitan area can cost up to $18,000 per month.  When one spouse becomes ill and requires nursing home care, the well spouse should seek the proper advice regarding the resulting issues and possible solutions. 

When contemplating nursing home admission, a couple should make sure that all of their necessary documentation is in order.  If they haven’t already done so, the couple should execute advance directives, namely a Power of Attorney, Health Care Proxy and Living Will.  These documents will allow the well spouse and/or the children, if any, to act on the sick spouse’s behalf. If Husband lacks the capacity to execute documents, a guardianship proceeding with a request to engage in Medicaid planning and other financial transactions may be necessary.

If payment options such as long-term care insurance are not available, Medicaid planning may be necessary.   If the couple is engaging in Medicaid planning, the well spouse should execute a new will leaving out Husband so he does not inherit assets if the well spouse dies before him.  If Wife does not want to disinherit Husband, she can execute a will that includes a special needs trust for the benefit of Husband that terminates upon his death.

Another consideration is determining the appropriate facility for placement. Caregivers are often confused as to which placement option is best.  An attorney can discuss the options and can also connect the client to a team of professionals, such as nurses and social workers, who can best help the well spouse navigate through the process.

            Part of the Medicaid process is reviewing all of the couple’s income and assets and determining their effect upon Medicaid eligibility.  It is important for the client to become educated regarding the applicable regulations so that she can make an educated decision as to whether to proceed with a Medicaid application.  Spouses with assets above statutory levels must sign a “spousal refusal” which essentially eliminates consideration of a well spouse’s assets and income when determining eligibility for the Medicaid applicant. In other words, the Medicaid agency will count only the applicant spouse’s income and resources when determining eligibility.  However, Medicaid will still review gifts made by either spouse.  If either of the spouses has made gifts (transfers) in the past five years, and the recipient cannot return the funds, it may be necessary to pay privately for a period of time before Medicaid begins to cover the cost of care.

            Another major consideration is protection of the family home.  If there is another individual, such as a disabled child or an adult child who has been living in the home for at least two years, the client should consider the option of transferring the home to one of these individuals because the transfer will fall within the category of “exempt” transfers that have no effect on nursing home Medicaid eligibility.  If the couple has a disabled child, the client should also consider creating a special needs trust as part of this plan.

            Finally, there are situations in which a couple is estranged and has long been contemplating divorce.  It is important to discuss with an attorney any family law issues and how any decisions will affect the Medicaid agency’s review of a Medicaid application.

In addition to these topics, there are many other issues to explore when a spouse is institutionalized and Medicaid is being considered.  It is important to meet with an elder law professional who can provide appropriate advice.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Stacey Meshnick, Esq. is a senior staff attorney at the firm who has chaired the firm’s Medicaid department for over 15 years.The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.  Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273. 

Eva Schwechter is an associate with the firm.

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