Elder Law FAQs

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Medicaid is a program intended to provide medical benefits to certain populations. It is a joint federal-state program. While states receive federal funding and must follow specific federal rules, each state administers its own Medicaid program. Medicaid covers all types of medical care, including long-term care, such as a nursing home. However, eligibility criteria are more stringent when trying to qualify for long-term care. Medicaid has specific rules in New York State and Long Island.  

Medicare and Medicaid are two different government programs for healthcare. It is important to understand the difference between them.  The program benefits differ and there are different guidelines for eligibility.

Medicare is a program administered by the federal government to provide healthcare to certain populations. Original Medicare is divided into Parts A and B. Medicare Part A covers hospital care and a limited period of nursing home care, home health services, and hospice care. Medicare Part A will only cover nursing home care if – 

1. There was first a qualifying hospital stay of 3 days of inpatient care; and

2. Nursing home care was needed relating to the hospital stay; and

3. The patient entered the nursing home within a short time of the hospital stay (usually within 30 days).

Thereafter, only the first 20 days of nursing home care are paid for by Medicare Part A. Days 21 through 100 of care require a partial payment by the patient. Any care after 100 days is not paid at all by Medicare Part A. 

Medicare Part B covers traditional healthcare expenses, such as visits to a doctor, blood tests, and X-rays. In most cases, a referral is not needed to see a specialist. Original Medicare does not cover prescription drug coverage; however, you can enroll in Medicare Part D through a private insurance company with paid premiums. 

Medicaid, as stated above, is also a program intended to provide medical benefits to certain populations. It is a joint federal-state program. While states receive federal funding and must follow specific federal rules, each state administers its own Medicaid program. Medicaid covers all types of medical care, including long-term care, such as a nursing home. However, eligibility criteria are more stringent when trying to qualify for long-term care. The Law Office of Melissa L. Carvajal, P.C. helps Long Island residents understand the complexities of Medicaid.  

Yes.  Even though the legislation established a protocol when it is determined that a person does not have decision-making capacity, the FHCDA requires a selection of a surrogate from a list of individuals ranked in order of priority.  For example as per the FHCDA, your spouse is given priority so in the event of a second marriage later in life, your second wife gets priority over your adult children.  This may not be the person you want making such decisions and this is why it is important to choose who you want and not let the State pick for you. 

Additionally, the FHCDA is a New York state law only, so if you fall ill in another State, that State's laws will take effect if you do not have a health care proxy, which will be honored by other states.  

The major benefit of a revocable living trust is that it avoids the cost and time associated with probate. Additionally, revocable living trusts avoid potential challenges to the last Will and Testament and protect the Grantor's privacy.  Revocable living trusts create an easier transition of assets and there are not gift tax consequences when the assets are transferred.  

The substantial cost of nursing home care for an incapacitated person can wipe away a family’s nest egg and the inheritance planned for surviving family members. There are only a few options to pay for nursing home care.  Very few of us can afford to pay out of pocket.  The first way is one can pay for long term care.  The second way is utilizing long term care insurance and the third way is Medicaid. The primary alternative to privately paying the nursing home is Medicaid.  
 

A guardianship is the legal process of giving somebody else the legal authority to make some or all of your decisions.  Simply put, it is making another person responsible for your care and decisions if you are unable to make your own. Guardianships are awarded if someone has dementia or  Alzheimer’s disease, medical incidents such as heart attack, stroke, coma or vegetative states, accidents or violence that led to a change in ability to make decisions, people with special needs, people born without the capacity to make their own financial and healthcare decisions and those with addictions like drugs and alcohol which reduces the ability to make good decisions.  

To avoid guardianship you can use a durable power of attorney.   

Having another persons name on your accounts does make it easier for them to pay the bills and manage money for you BUT that person has complete access to your money.  As a joint owner they can use the money for their own purpose and worse their creditors have access to your money.  A safer strategy is to set up a durable power of attorney, naming them as your agent.  If you become unable to manage your finances anymore then they can take the durable power of attorney to the bank and pay your bills.  

Yes, through a process called Medicaid Estate Recovery, Medicaid can take your property.  This means that Medicaid can recover what they have paid our for long term care from your estate.  But Medicaid is limited to recovering from your probate estate ONLY.  So if you avoid probate you can avoid Medicaid recovery.  This is why estate planning is especially important. 

The "lookback" period is the period in which Medicaid will retroactively reivew the financial activity of a long-term care applicant.  Medicaid is looking back to see specifically whether or not the applicant gave anything away to either lower their asset threshold or remove an asset from possible estate recovery.  IF a gift has been given within the lookback period the applicant will be penalized, meaning you will not qualify for Medicaid until the facility has been paid an amount roughly commensurate with the value of the gift.  For assisted living facilities the lookback period is three years, for skilled nursing home care the lookback period is five years.  This is why early planning is necessary.  The earlier you move assets out of your estate, the better. 

 One strategy is to have a family code word or phrase that your entire family knows. If the caller doesn't know the password or phrase, your parents will be able to identify the caller as a scammer.    

Warn your parents about the new "Grandparents Scam" To protect your parents from being victimized by a scam, talk to them about the importance of never disclosing personal or financial information or the names of their loved ones in a text, phone call or email.   

In the new “Grandparent Scam,” fraudsters will call or text senior adults pretending to be their grandchild. The scammer will claim that they’re in trouble and that they need the grandparent to send them money right away to bail them out of jail,buy a ticket home from a dangerous location️, or pay for damages caused by a car accident. 

By law your spouse is entitled to 50% of your 401k, even if they aren't named as a beneficiary.