Elder Law Blog

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Backdoor filial responsibility in Georgia

Filial responsibility is a name given to laws that make third parties (usually adult children) responsible for support for indigent family members. These laws are based on English "poor laws" from the 16th Century. Many states, including Georgia, have these laws on the books. Georgia's version, however, has been a toothless tiger for the most part. The Georgia statute is found at O.C.G.A. § 36-12-3. There, it provides that the “county” providing care for a pauper may bring an action against a father, mother or child to recover support provided to the pauper. These days, however, counties rarely provide support, so it’s difficult to imagine how a claim could be brought.

By contrast, Pennsylvania has a broader filial responsibility statute. In Health Care & Ret. Corp. of America v. Pittas, 46 A.3d 719 (Super. Ct. of Penn. 2012), a nursing home sued a son for his mother’s unpaid nursing home bills. The case went to arbitration, where the son won. However, the nursing home appealed the case and the arbitration award was reversed in the Common Pleas Court, and upheld on appeal. On appeal, the son objected to the Court placing on him the burden to prove he was unable to pay, because other family members were not held liable with him, because the Court refused to consider other potential sources of payment such as Medicaid, and because his mother was not indigent. The Court rejected each of the son’s arguments, but noted that if Medicaid was ultimately approved, then he would have no responsibility to pay the bill.

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2017 Spousal Impoverishment Standards

CMS has published the 2017 Spousal Impoverishment Standards at:

https://www.medicaid.gov/medicaid/eligibility/downloads/spousal-impoverishment/2017-ssi-and-spousal-impoverishment-standards.pdf 

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Can you sell your home after you go on Medicaid (or to a nursing home)

The short answer is "yes, you can" sell your house. However, there may be consequences.

A home is usually an exempt resource when you apply for Medicaid. Cash from the sale of a home, is not exempt and counts toward your $2,000 resource limit. Therefore, if you sell your home, you must report the sale to Medicaid within 10 days and you will probably be kicked off of Medicaid until you do something with the cash. One option is to spend the cash on nursing home care until you're broke and then go back on Medicaid. That;s probably not a good choice because that does nothing to enhance your circumstances or your quality of life. Another option is to speak with a Certified Elder Law Attorney about ways you can plan for your future needs, or the future needs of your spouse or children (especially if you have disabled children or grandchildren).

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Georgia changes method for awarding home and community based services

As of July 1, 2016, the Georgia DHS is changing the way Home and Community Based Services are awarded.

Home and Community-Based Services are services that help older Georgians live safely, healthily and independently in their communities. The services are funded through the Older Americans Act and include home-delivered meals, personal care assistance, homemaker services and respite care.

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Medicaid Planning: Don't try this at home

If you think Medicaid is confusing, you have some good company. A number of federal judges have arrived at the same conclusion. The following quote appears in Cherry v. Magnant, 832 F. Supp. 1271 (S.D. Ind. 1993):

The federal and state Medicaid statutes have been described as the regulatory equivalent of the "Serbonian bog." See John Milton, Paradise Lost, bk. 2, 1.592 ("A gulf profound, as that Serbonian bog Betwixt Damiata and Mount Casius old, Where armies whole have been sunk."). These regulations have also been characterized as "almost unintelligible to the uninitiated," Friedman v. Berger, 547 F.2d 724, 727 n.7 (2nd Cir. 1976) (Friendly, J.), cert denied, 430 U.S. 984, 52 L. Ed. 2d 378, 97 S. Ct. 1681 (1977); as an "aggravated assault on the English language, resistance to attempts to understand it"; Friedman v. Berger, 409 F. Supp. 1225, 1225-26 (S.D.N.Y. 1976); and by this circuit as "labyrinthinan." Roloff v. Sullivan, 975 F.2d 333, 340, n. 12 (7th Cir. 1992).

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The cost of nursing home care: Could it be as high as $730,000?

On October 16, 2015, USA Today reported (see link below) that nursing home care could run as high as $730,000. It told the story of Randy and Mary Kaump, who care for Randy's 97 year old monther, Janis. Janis has been a nursing home resident for four years, paying $13,000 per month. So far, she has depleted her savings, with Randy and Mary chipping in an additional $100,000 of their own money. In Georgia, the cost of care is hovering around $7,000 per month, so the bills are lower. Unfortunately, for most families $7,000 per month isn't nearly low enough.

Stories like this are all too common, but even more common is the story of a spouse depleting his or her savings to pay for a sick spouse's care. Although there is nothing wrong with paying for your own care, most people don't have that much to fall back on so paying for care could mean the healthy spouse has nothing to use for his or her own retirement needs. Would it make a difference if you knew there's help out there?

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Should I get divorced before I apply for Medicaid?

In hindsight, people might have acted differently. That could be the case with the participants litigating Colonial Park Care Center, LLC v. Dep’t of Public Works, 2015 Pa. Commw. LEXIS 406 (July 21, 2015).

In March, 2012, John Matjasic was admitted to Colonial Park, a nursing home. John was 77 years old at the time. In 2007, John had a stroke, after which he resided with his wife and daughter. Although the facts in the case are less than clear, it appears like John and his wife were separated prior to the stroke. In 2012, John had a seizure, which led to the nursing home admission.

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