Elder Law Blog

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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).

Why is Medicaid so confusing? In part, because Congress has been tinkering with it since 1965 so it's like the streets in Atlanta (paved cow trails). Another reason is because the Medicaid statute and accompanying rules tell you whether you receive help paying for care under some circumstances, but only if you have the right kind of sickness or condition, and only if you are poor enough under the rules. That's where it becomes interesting because the right advocate can help you frame the issues to show that you do have a covered condition, and can help you restructure your estate in a way that makes you eligible. Medicaid planning requires an understanding of the Medicaid rules, but it also requires an understanding of contract law, property law, tax law, probate law, the rules of evidence, administrative law, and the law of agency. A Certified Elder Law Attorney can put the pieces together for you.

Is Medicaid planning a good idea? Well, here's some food for thought. We recently ran into an individual who was living hand-to-mouth because he believed, incorrectly, that he was not allowed to have more than $2,000 since his wife was in a nursing home. Another person we ran into had spent down to $8,000 paying for her husband's nursing home care before someone suggested seeing an Elder Law Attorney. She didn't realize the Medicaid rules give the healthy spouse a resource allowance. Others have children with special needs who will require support after the parents are gone. People are regularly placed in unhealthy and unsafe situations because they rely on myths and rumor. Still others have received incorrect advice and try home-made Medicaid plans that either make things worse, or put you at risk of going to jail.

Certified Elder Law Attorneys understand the law and can fight to get you the best result when you need help paying for your loved one's long-term care. They can protect the healthy spouse's retirement. They can protect your special needs children. They can restructure your estate so you don't have to choose between paying the mortgage, the power bill or buying groceries; frankly, you shouldn't have to make that choice. Unfortunately, without assistance from an Elder Law Attorney, you might have to because the rules are not structured to help you unless you know your rights, and you have someone who can fight to enforce your rights.

Obviously, if you are in Georgia or Tennessee, we would love an opportunity to help you plan for the future. If you are not near us, you can find other Certified Elder Law Attorney by visiting the National Elder Law Foundation's website at www.nelf.org.

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