Thanks to Lynn Brenner of Newsday for her column, Ask the Expert.  On November 5, 2010, she responded to a question regarding how to protect mom's home if mom needs Medicaid nursing home care.

The daughter informed Ms. Brenner that her mother is 93 years of age, in failing health and her daughter has lived in mom's house since 1995.

I was privileged to be asked by Ms. Brenner to provide counsel on this matter.  In her column, I pointed out that the home is exempt for Medicaid eligibility purposes but subject to recovery when mom passes away.  There are specific rules that allow the home to be transferred to certain people or trusts without a Medicaid transfer penalty. These transfers are referred to as exempt transfers. This would avoid the Medicaid estate recovery upon mom's demise.

Lynn Brenner then went on to point out how this could be done and the importance of Advance Directives (such as the Durable Power of Attorney and Health Care Proxy) in the event mom lacks capacity to make financial and health care decisions.

The key is to act. The home is not protected simply because the daughter is a live-in-caregiver and hence an exempt transfer can be made to her.  The home must actually be transferred to the daughter while mom is alive.  If a transfer is made, there are also tax consequences that must be taken into account.

For the full article, go to www.vjrussolaw.com/teamrusso/latest-news

The Family Health Care Decisions Act became New York Law on March 16, 2010.

The new law covers New York residents (other than the developmentally disabled and the mentally retarded who are covered under a different statute) who lack the capacity to make health care and end of life decisions for themselves, even if such individuals previously had capacity but never expressed their wishes in a health care proxy or living will. This new law was 17 years in the making.