Common FAQs about Elder Law
Are there things I can do to "protect" my assets?
Yes! There are a number of very useful planning techniques that can be used to help protect many of your assets. The main key to success is careful planning. It is possible to wait too long - to the point where there are few, if any options available. NAELA attorneys understand this and will help you to develp a strategy designed to protect as much as possible. It is usually not possible to protect everything, but with careful, thoughtful planning, it is possible to leave your family a legacy even if you require long-term care.
If I go to a nursing home will they "take" all of my stuff?
In short - no. Nursing homes are private businesses like any other business, except that their focus is providing care. Nursing homes charge for their services, usually on a monthly basis, and require payment for the continued use of their facilities. However, like any other business - like a car dealer - they don't ask you to give them everything you own at the beginning of your stay. Once you can no longer afford to pay for your care, you may apply to the State of Wisconsin's Medicaid program for assistance. If you still have more assets than would allow you to qualify for Medicaid, you may have to sell assets to be able to stay in the nursing home, but the nursing home will not come and take your stuff.
If I make a gift to my children will the state come after them?
No. Once a gift has been made, it becomes the property of the person receiving it - the state has no right to take property away from them. What may happen, however, is that YOU may be subject to a divestment penalty, the effect of which is that you may be or become ineligible for benefits under the Medicaid program for a period of time known as the "penalty period." Penalty periods begin to run once you have spent down to the normal eiligibility limits, and last for a period of time that is based on the value of the gift.
Example: Roger owns a parcel of land worth $280,000. The land has been in his family for many years and he is afraid he will lose it if he goes into the nursing home so he gives it to his son, Phillip. A year later Roger suffers a debilitating stroke. Roger has a small IRA and bank account, which he uses up to pay for his care. Because Roger is not married, he can only have $2,000 in liquid assets (plus some other things not relevant to this example). He applies for Medicaid and at the time of application, meets all of the current eligibility requirements. However, because of the gift he will not be eligibile for Medicaid because the state imposes a penalty period. The period is based on the value of the gift, $280,000, and an amount set by the state which represents the average daily rate for nursing home care at the time of applicaiton ($280). Thus, the penalty period is 280,000/280 or 1,000 days. Roger will have to wait 1,000 days before he can receive Medicaid even though he has spent down to Medicaid eligiblity limits.
If I need long-term care will I have to sell my farm to pay for it?
In many cases, the answer is no. Family farms are businesses which can often be protected under existing Medicaid law if certain requirements are met. This may enable you to pass the family farm to children, allowing themto continue the farming tradition begun by you or your family.