Fong Law Group

What Is a Health Savings Account? Will Medicare Affect Mine?

A health savings account may help you save money on medical expenses, depending on your insurance type. If you are eligible, you can use your health savings account (HSA) to cover certain medical costs, according to HealthCare.gov.

How Does an HSA Work?

If you have a high deductible health plan, you can contribute to an HSA and use the untaxed money to cover medical costs, decreasing your total medical expenses.

High deductible health plans typically have lower monthly premiums than other insurance plans. However, individuals may pay more for medical services before coverage starts, per HealthCare.gov.

What Do Health Savings Accounts Cover?

You can use an HSA to pay for deductibles, copayments, and coinsurance.

Examples of typical expenses for which you can use a health savings account include:

• Acupuncture
• Ambulance costs
• Doctor visits
• Hearing aids
• Medications
• Psychiatric care and psychological therapy
• Certain long-term care services

However, you generally cannot use money from an HSA for monthly insurance premiums, unless you receive Medicare, health care continuation coverage, or unemployment compensation.

For long-term care insurance, you may be able to pay your premiums through a health savings account.

The Benefits of Health Savings Accounts

The advantage of using a health savings account is that funds are not subject to federal taxes when you contribute or withdraw money to pay for qualified medical expenses. You can also earn tax-free interest.

Should you have money left over in your account at the end of the year, it rolls over. The funds stay active, remaining in your account until you need them. Even if you change jobs or retire, you can keep your HSA.

In some cases, you can use your health savings account to cover your spouse’s and dependents’ medical expenses, even if they are not on your plan.

Health Savings Account Rules

2023 Contribution Amounts

The Internal Revenue Service sets contribution limits on HSA’s.

• For 2023, individuals can contribute up to $3,850, and families can put up to $7,300 into a health savings account, Investopedia reports.
• People who are 55 and older by the end of the tax year can make an additional $1,000 catch-up contribution.

Other Insurance Types

Other insurance plans can disqualify you from contributing funds to an HSA.

• Individuals with dollar-first insurance plans – in which the insurer takes care of its share of an included service before the insured individual pays deductibles or copayments – cannot put funds into a health savings account for their outstanding health care fees.
• Those on Medicare cannot add money to health savings accounts, though they can withdraw capital from their accounts to pay medical expenses that Medicare does not cover. While people using health savings accounts typically cannot use the funds to cover monthly premiums, there is an exception for Medicare beneficiaries.

Penalties

Although health savings accounts have several advantages, they also impose restrictions on how you use your money.

Taking money from your account for nonmedical or unqualified expenses before you reach 65 results in a 20 percent tax penalty. The 20 percent tax penalty for ineligible withdrawals does not apply if you are 65 and older. Still, you must pay income tax.

Opening a Health Savings Account

There are several ways to open an HSA.

• Employers can offer them, with the employer and the employee jointly funding the account.
• Some health insurance companies provide health savings accounts with high deductible health plans.
• Banks and financial institutions offer accounts for individuals.

How Does Medicare Affect Your Health Savings Account?

When you enroll in Medicare, you can no longer contribute pre-tax dollars to your health savings account. To put untaxed money in an HSA, you must have high deductible health insurance without additional disqualifying coverage, such as Medicare. Once you have Medicare, you can no longer add tax-free funds to your account.

After you enroll in Medicare, however, you can still access your health savings account. One of the advantages of health savings accounts is that they are vested. As a Medicare beneficiary, you can continue using untaxed funds to cover the medical expenses your insurance does not bear, such as deductibles, coinsurance, and copayments. You cannot, however, use tax-free money to pay for Medicare supplemental insurance.

While the Internal Revenue Service (IRS) prohibits people from using untaxed capital for high deductible health insurance plan premiums, the rule differs for Medicare. When you enroll, you can use your HSA to pay your Medicare premiums without taxes.

Withdrawing Money From Your HSA

People over 65 can withdraw funds from their health savings accounts for nonmedical expenses. Although these withdrawals are no longer tax-free, older adults do not incur the 20 percent tax penalty the IRS imposes on younger people taking funds HSA’s for ineligible expenses.

Since medical costs tend to increase with age, many prefer to keep their money in their health savings accounts to cover eligible medical expenses tax-free.

Delaying Medicare Enrollment

Some people with health savings accounts enroll in Medicare when they initially become eligible, forfeiting the ability to make HSA deposits for Medicare’s coverage. Others delay enrollment in order to continue making health savings account contributions.

• According to the Journal of Accountancy, only individuals with employer-sponsored high deductible health insurance as their primary coverage can continue adding to their health savings accounts past retirement age by delaying Medicare enrollment.
  
  Individuals with private insurance, continuation of health coverage (COBRA), or a health care exchange cannot fund their HSA’s after reaching retirement age.
   
• People who continue to work at small companies after becoming eligible for Medicare must enroll in the program immediately to have any health insurance coverage.
  
  Per MedicareInteractive.org, Medicare must be the primary insurance for those working at companies with fewer than 20 employees. Since the small employer’s health plan does not have to pay until after Medicare contributes, these individuals risk losing health coverage if they delay enrolling in Medicare. Deferment also results in a late penalty.
   
• Those with health insurance from businesses with 20 or more employees can put off Medicare enrollment and continue placing funds into their health savings accounts. Because the company insurance would remain the primary insurer when they join Medicare, they can continue receiving health insurance coverage without Medicare.

Individuals who wish to delay enrolling in Medicare should not accept Social Security payments. This is because Social Security automatically registers beneficiaries for Medicare Part A, rendering them unable to make HSA deposits.

Medicare and the IRS recommend that people who have delayed enrollment after becoming eligible should cease health savings account contributions six months before joining Medicare to avoid a tax penalty. A six-month lookback period applies, as Medicare’s coverage is retroactive.

If you have an HSA, whether you should delay Medicare enrollment depends on your situation. The decision could significantly impact your finances. Speak to your elder law attorney to learn more about your options for your health savings account as you approach retirement age.

How Medicaid's Money Follows the Person Program Aids Seniors

Congress established the Medicaid Money Follows the Person (MFP) Program to provide states with federal funding to help seniors who are receiving care in institutions but want to live at home.

However, it is not a permanent program and is due to expire in September 2027. Advocates have pushed for Congress to make MFP permanent, ensuring that states have funding for seniors who wish to return home from long-term care facilities.

What Is the Medicaid Money Follows the Pereson (MFP) Program?

MFP was established in 2005 to increase Medicaid enrollees’ access to home- and community-based services (HCBS). In part, its goal is to allow seniors to avoid nursing homes and other institutions, and instead receive care in their own homes and communities if they choose. Other beneficiaries of the program include people with disabilities.

MFP allows the Centers for Medicare and Medicaid Services to remove the restrictions that are placed on how funds are allocated for long-term services. It increases the use of HCBS services instead of long-term services and support.  

How Does MFP Help Older Adults?

Throughout its existence, MFP has helped seniors who otherwise would have been institutionalized maintain control over their lives by providing a chance at independent living. In the nearly two decades since the program began, MFP has helped more than 107,000 people move from a nursing home or a long-term care facility back into their home. One evaluation found that MFP results in greater life satisfaction among participants.

Returning home from an institution is a tall task for most seniors. A major concern is the lack of staff to take care of an individual’s medical and personal needs. In many cases, seniors must rely on family members. MFP helps ease the burden of transitioning from care facilities back home.

Examples of the type of support MFP provides seniors as they move back home typically include:

• Help paying for groceries
• Short-term transitional housing
• Security deposits for rental homes and apartments
• The cost of necessities for setting up a home (e.g., stair-lifts, wheelchair ramps)

Can MFP Help Seniors Secure Housing?

The federal government funds the Medicaid Money Follows the Person program. Medicaid is prohibited from paying for housing directly. MFP allows states to use money from the program to pay for case management and transitional support services for seniors.

To address the needs of low-income seniors, state governments have used MFP funds to partner with housing authorities and developers to ensure more housing options are available for seniors who want to live independently.

Will the Medicaid Money Follows the Person Program End?

MFP has been a Medicaid demonstration program since 2008. Demonstrations are used to determine whether programs should become permanent. More than 40 states and territories currently are a part of MFP.

However, Congress has inconsistently funded MFP. The uncertainty about whether the program will have long-term funding has made it difficult for states to budget, so over time some states have been opting out of the program entirely. If MFP expires in 2027, many more seniors will be forced to live in long-term care facilities, losing the independence they desire.

It remains to be seen whether Congress will make the program permanent. If it does, states will have a set amount of money to increase seniors’ ability to live on their own as they age.

Learn more about the program at Medicaid.gov. For further guidance, speak to your elder law attorney.

Can a Nursing Home Hold Friends or Family Members Responsible For a Resident's Care?

If your loved one is entering a nursing home, you may worry whether you could be liable for their care. Under federal law, a facility cannot require a family member or friend to co-sign an admission agreement and take on personal liability. However, nursing homes around the country still try to do so, and often these matters end up in court.

What can you do to prevent this from happening to you? It starts with educating yourself on what is and is not allowed.

A law known as the Federal Nursing Home Reform Law prohibits a nursing home or facility from requiring or asking for a financial guarantee from a third party. Federal regulations regarding Medicare and Medicaid have similar restrictions.

These laws and regulations state that a home cannot have a resident’s family member or friend co-sign an admission agreement to take on financial liability. However, a nursing facility may obtain the signature of the resident’s agent, who has access to the resident’s income or assets, agreeing to use these resources to pay for care. Still, this agreement may not impose personal financial liability on the agent.

Review Before You Sign

If you are assisting a loved one with entering a nursing home, you should carefully review all the admission paperwork before you sign it. Many facilities have unscrupulous practices of using admission agreements that violate federal law or regulations.

You do not have to sign or “volunteer” to sign a financial guarantee that makes you personally responsible. It is incorrect if a nursing home claims a guarantee is necessary because the federal law only applies to Medicaid-eligible individuals. Nursing homes are also not allowed to condition admitting or keeping a person on receipt of a third-party guarantee.

Today, the most common tactic used by nursing homes is an admission agreement that obligates the signor as an agent with supposed control over the resident’s money. These agreements stipulate the agent will apply these resources to the nursing home expenses and apply for Medicaid on the resident’s behalf. Often, the person signing this document doesn’t know how to handle this situation, does not have this control, or makes mistakes in the resident’s Medicaid application, causing coverage to be denied.

What follows may be a lawsuit by the nursing home, claiming the agent violated their duties in the agreement and must pay the care costs. Courts have gone both ways on whether these agreements are enforceable, and the agent’s conduct often influences a court’s decision. Egregious conduct can lead to courts ruling in favor of the nursing home. An example is where an agent used the resident’s money for luxury items or other people’s expenses rather than their loved one’s care.

Plan Ahead As Much As Possible

The best action is to plan before nursing home care is necessary. This can put you or your loved ones in a position to be ready to apply for Medicaid should the need arise. At the same time, an aging individual can do proper asset protection planning and avoid look-back periods creditors could otherwise exploit against the resident or an agent.

However, this is not always possible for many older adults and their family members. Individuals who will take on the responsibility of being an agent should understand what this entails and seek the advice of your elder law attorney before starting the admission process.

Miller Trusts Can Help You Qualify for Medicaid

Many seniors find themselves in need of Medicaid to pay for their long-term care but are surprised to learn that their modest monthly income may disqualify them. The reason for this is that Medicaid is a “means-tested” benefit. In other words, you must not have income exceeding certain thresholds in order to qualify and receive Medicaid benefits. For example, in New Jersey, the monthly income limit for nursing home or community-based services is $2,523 for individuals and $5,046 for married couples.

Medicaid expects all of an applicant’s monthly income, besides a monthly personal needs allowance and Medicare premiums, to go toward nursing home costs. So, what if you have more income and other expenses? A Miller Trust may help you resolve this dilemma.

A Miller Trust is a Medicaid planning tool that can assist you in meeting the income limits and qualifying for Medicaid. Unlike other planning tools, Miller Trusts do not have specific disability or age requirements.

How Does a Miller Trust Work?

If your income exceeds Medicaid’s income limit, you can deposit the amount of your excess income into a Miller Trust – also referred to as a “qualified income” trust. Once it is deposited into this trust, it is not counted as income by Medicaid. However, to qualify, a trust must be irrevocable, which means you cannot cancel or change it. Once you put money into the trust, you cannot get it back directly. However, the trust can pay certain expenses on your behalf.

A Miller Trust is a good option for any Medicaid applicant needing long-term care services, whether at home, in their community, or in a skilled nursing care facility. This trust is created by the applicant, a guardian, or a person with a properly drafted power of attorney. A trustee is chosen to manage the trust and the income deposited. Anyone other than the Medicaid applicant can serve as a trustee.

Once the trust is set up, the trustee establishes a bank account to receive excess income from the Medicaid applicant. The income can only be used for certain expenses. For example, it may be used to pay the personal needs allowance of an individual in a nursing home, Medicare premiums, bills not covered by Medicaid, or supplement costs of a nursing home.

Another requirement of a Miller Trust is that the applicant’s state Medicaid agency will be the beneficiary of any remaining funds in the trust upon the death of the Medicaid applicant. The amount the state receives is limited to the total value the state paid in long-term care on behalf of the applicant. Any amount remaining after this payment may go to a person the applicant chooses.

Medicaid Income Cap

You should be aware that not every state allows Miller Trusts as a method to qualify for Medicaid. Currently, only about 25 states, known as “income cap” states, permit it. Other states do not impose an income limit for nursing home care, and so there is no need for a Miller Trust in these locations. For example, in Massachusetts, you would pay all your income, minus certain deductions, to the facility, and Medicaid would pay the remaining cost.

Before creating a trust, it is important to speak with an elder law attorney to ensure this option is right for you. If you live in a state where this is not allowed, there may be other options, such as pooled income trusts, which serve a similar purpose.

For guidance in Medicaid planning, consult your attorney.

Should You Prepare a Medicaid Application Yourself?

Navigating the Medicaid application process can be complicated, especially if you are applying for long-term care benefits. Hiring an attorney to help you through the process can be extremely helpful. 

Whether you should prepare and file a Medicaid application by yourself or should hire help depends on answers to the following questions:

• How old is the applicant?
• How complicated is the applicant's financial situation?
• Is the individual applying for community or nursing home benefits?
• How much time do you have available?
• How organized are you?

Medicaid is the health care program for individuals who do not have another form of insurance or whose insurance does not cover what they need, such as long-term care. Many people rely on Medicaid for assistance in paying for care at home or in nursing homes.

For people under age 65 and not in need of long-term care, eligibility is based largely on income and the application process is not very complicated. Most people can apply on their own without assistance.  

Matters get a bit more complicated for applicants age 65 and above and especially for those of any age who need nursing home or other long-term care coverage. In these cases, availing yourself of the services of an attorney is practically essential.

Medicaid applicants over age 65 are limited to $2,000 in countable assets (in most states). It's possible to transfer assets over this amount in order to become eligible, but seniors need to be careful in doing so because they may need the funds in the future and if they move to a nursing home, the transfer could make them ineligible for benefits for five years. Professional advice is also crucial because there is a confusing array of different Medicaid programs that may be of assistance in providing home care, each with its own rules.

All of that said, the application process itself is not as complicated for community benefits (care that takes place outside of an institutional setting, such as in the beneficiary’s home). In short, those over 65 may need to consult with an elder law attorney for planning purposes, but they or their families may be able to prepare and submit the Medicaid application themselves.

But submitting an application for nursing home benefits without an attorney's help is not a good idea. This is because Medicaid officials subject such applications to enhanced scrutiny, requiring up to five years of financial records and documentation of every fact. Any unexplained expense may be treated as a disqualifying transfer of assets, and many planning steps -- such as trusts, transfers to family members, and family care agreements -- are viewed as suspect unless properly explained. Finally, the process generally takes several months as Medicaid keeps asking questions and demanding further documentation for the answers provided.

Many elder law attorneys offer assistance with Medicaid applications as part of their services. This has several advantages, including expert advice on how best to qualify for benefits as early as possible, experience in dealing with the more difficult eligibility questions that often arise, and a high level of service through a long, grueling process. The one drawback of using an attorney rather than a lay service is that the fee is typically substantially higher. However, given the high cost of nursing homes, if the law firm's assistance can accelerate eligibility by even one month that will generally cover the fee. In addition, the payments to the attorney are generally with funds that would otherwise be paid to the nursing home -- in other words, the funds will have to be spent in any event, whether for nursing home or for legal fees.

Medicaid's Home Care Waivers Can Help You Avoid a Nursing Home, But the Line May Be Long

Medicaid long-term care benefits traditionally pay mainly for nursing home care, but the federal government can grant “waivers” to states allowing them to expand Medicaid to include home and community-based services. The downside is that receiving care in a nursing home is an entitlement, while getting care at home is not.  

Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state's Medicaid costs. (The state picks up the rest of the tab.) A Medicaid waiver allows states to waive some of the federal rules with the intention of providing services to individuals who wouldn’t normally be covered by Medicaid. The waiver must be approved by the federal government. 

The most common type of Medicaid waiver expands Medicaid to cover home care to individuals who need a high level of care, but who would like to remain at home rather than enter a nursing home. Care that may be provided by a waiver includes personal attendants, home health aides, medical supplies and equipment, respite care, counseling services, transportation, homemaking services, hot meal delivery, and more. 

Each state sets up its own waiver program, so the rules and requirements vary widely. Usually, to qualify an applicant must need a level of care similar to what is needed to qualify for Medicaid coverage in a nursing home. The point of the waiver is to allow an individual who would normally need nursing home care to remain at home, which is typically a far less costly form of care. States may also target different health conditions, such as HIV, Alzheimer’s disease, diabetes, cystic fibrosis, among others. Each state also sets its own income and asset levels for its waiver programs, which may vary from state to state, and may be different from the income and asset levels used for Medicaid coverage of nursing home care. 

The downside of state waiver programs is that waivers are not an entitlement, meaning that states are allowed to limit the number of people who qualify for services under a waiver. Just because an applicant meets the criteria for eligibility does not mean the applicant will be approved for the services. As a result, waitlists for filled programs can run for months or years. 

To find out your Medicaid home care options, you should check with your elder law attorney. 

To find and apply for a waiver program in your state, contact your state Medicaid office.  

How Much Money Can You Have and Still Qualify for Medicaid?

In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in "countable" assets (the figure may be somewhat higher in some states). Note that Medicaid is a state-run program, so the rules are somewhat different in each state, although there are federal guidelines.

The spouse of a nursing home resident--called the "community spouse" -- is limited to one half of the couple's joint assets up to $130,380 (in 2021) in "countable" assets. This figure changes each year to reflect inflation. Called the "community spouse resource allowance," this is the most that a state may allow a community spouse to retain without a hearing or a court order. The least that a state may allow a community spouse to retain is $26,076 (in 2021).

Example: If a couple has $100,000 in countable assets on the date the applicant enters a nursing home, he or she will be eligible for Medicaid once the couple's assets have been reduced to a combined figure of $52,000 -- $2,000 for the applicant and $50,000 for the community spouse.

Some states, however, are more generous toward the community spouse. In these states, the community spouse may keep up to $130,380 (in 2021), regardless of whether or not this represents half the couple's assets. For example, if the couple had $100,000 in countable assets on the "snapshot" date, the community spouse could keep the entire amount, instead of being limited to half. 

All assets are counted against these limits unless the assets fall within the short list of "noncountable" assets. These include the following:

• Personal possessions, such as clothing, furniture, and jewelry
• One motor vehicle, regardless of value, as long as it is used for transportation of the applicant or a household member. The value of an additional automobile may be excluded if needed for health or self-support reasons (check your state's rules).
• The applicant's principal residence, provided it is in the same state in which the individual is applying for coverage. In some states, the home will not be considered a countable asset for Medicaid eligibility purposes as long as the nursing home resident intends to return home; in other states, the nursing home resident must prove a likelihood of returning home. Under the Deficit Reduction Act of 2005 (DRA), principal residences may be deemed noncountable only to the extent their equity is less than $603,000 (in 2021), with the states having the option of raising this limit to $906,000 (in 2021). In all states and under the DRA, the house may be kept with no equity limit if the Medicaid applicant's spouse or another dependent relative lives there
• Prepaid funeral plans and a small amount of life insurance
• Assets that are considered "inaccessible" for one reason or another

Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate while still meeting Medicaid's strict asset limits. To learn more, consult with your elder law attorney.

Britney Spears Case Puts Renewed Focus on Guardianships and Less Restrictive Alternatives

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights. While a full guardianship may be necessary for many individuals who are incapable of managing their own affairs due to dementia or intellectual, developmental or mental health disabilities, the Spears case underlines the option of more limited alternatives.

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian" or a "conservator," depending on the state.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The National Center for State Courts says that about 1.3 million adults are living under guardianships or conservatorships with some $50 billion in assets.

The standard under which a person is deemed to require a guardian differs from state to state, and because guardianships are subject to state law, data on them is hard to collect and protections against abuse vary widely.  Netflix’s popular movie, I Care a Lot, spotlighted some weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. 

The Spears Case: An Unusual Situation

Britney Spears has been under a court-ordered conservatorship that has controlled her career and finances since 2008. Her father, Jamie Spears, was appointed her temporary conservator when the pop singer was allegedly struggling with mental health issues and had been hospitalized, and a Los Angeles court later made the conservatorship permanent.

On July 14, a Los Angeles judge approved the resignation of Spears’s court-appointed lawyer and granted her request to hire her own lawyer. The 39-year-old singer told the judge that she wants to end the long-running conservatorship that put her father in charge of her estimated $60 million fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. "I'm here to get rid of my dad and charge him with conservatorship abuse," she said.

Whatever the merits of this controversial case, what makes Spears's situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly is the fact that until now Spears was represented by a court-appointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

In the case of an elderly person who may no longer be able to handle some or all of her own affairs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Many people in need of help can make responsible decisions in some areas of their lives but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn't the answer at all. If a person can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. "Supported decision making" is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is "incapacitated," which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person in the driver's seat. Third, it is much less expensive and time-consuming.

Another option is a revocable or "living" trust that can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Experts say that Britney Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)

If you have questions about what type of guardianship may be right for your family member, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your elder law attorney today.

For an article on what may lie ahead in the Britney Spears case, click here.

For an article by University of Virginia Family Law Professor Naomi Cahn on how guardianships can lead to abuse, click here.

Medicaid's Coverage of Nursing Home Care

For better and for worse, Medicaid is the primary method of paying for nursing home care in the United States. But navigating the Medicaid system is complicated and confusing. Here are the basics. 

Medicaid (sometimes called by other names, such as "Medi-Cal" in California, "MassHealth" in Massachusetts, and "TennCare" in Tennessee) is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers long-term care for those who qualify. This coverage has traditionally meant care in a nursing home, although coverage of care in an assisted living facility or at home are possible (see below). 

In the absence of any other public program covering long-term care (Medicare provides only limited nursing home coverage), Medicaid has become the default nursing home insurance of the middle class. Lacking access to alternatives such as paying privately or being covered by a long-term care insurance policy, most people pay out of their own pockets for long-term care until they become eligible for Medicaid. 

Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state's Medicaid costs. (The state picks up the rest of the tab.) This complicates matters, since the Medicaid eligibility rules are somewhat different from state to state and they keep changing. To be certain of your rights, consult an elder law attorney in your state who can guide you through the complicated rules of the different programs and help you plan ahead. 

While the majority of nursing homes accept Medicaid patients, there are some that do not. Even nursing homes that accept Medicaid recipients may only have a limited number of Medicaid beds available. Nursing homes must be certified by the state in order to accept Medicaid payments. Check with the facility before applying for admittance. 

To qualify for coverage, applicants must have limited assets and income. You typically cannot have more than $2,000 in assets; the figure may be slightly higher in some states. To lower your assets, you need to spend them down by paying for things that benefit the Medicaid applicant. You cannot simply give away your resources in order to qualify for Medicaid. Income limits vary by state. In some states you can keep excess income in trust; in other states you must pay your excess income to the nursing home. 

In addition to the strict income and asset limits, you must meet level of care requirements in order to qualify for nursing home coverage. Each state sets its own level of care criteria and the criteria is not always clear. The state looks at an applicants’ functional, medical, and cognitive abilities to determine if they need care in a nursing home. You are usually determined to need long-term care if you need help with two or more “activities of daily living” (such as bathing, dressing, eating, moving, and going to the bathroom). But to need a nursing home level of care, you may also need frequent medical care, such as assistance with medication, injections, IVs, or other medical treatment. The state may also consider your cognitive abilities—i.e., whether you have the ability to make decisions on your own. 

Once you qualify for Medicaid, the program pays for all your basic expenses, but nursing home residents may be charged extra for certain amenities, like a private room, comfort items, or specially prepared food. 

In addition to nursing home care, Medicaid generally covers care in an assisted living facility as well as some home care services. Home care is typically provided through home- and community-based services "waiver" programs to individuals who need a high level of care, but who would like to remain at home. States vary widely on how to qualify and what is covered. Almost all state Medicaid programs will cover at least some assisted living costs for eligible residents.

To apply for Medicaid, contact your local Medicaid office. An elder law attorney can help you navigate the Medicaid process.

What to Do With Your Stimulus Check if You Are in a Nursing Home

As the second (and maybe third) round of stimulus checks go out, it is important to know that nursing home residents are not required to turn their checks over to their nursing home. And Medicaid recipients need to spend the cash within a year if it puts them over Medicaid’s resource limit. 

In December 2020, Congress approved $600 stimulus checks for individuals making less than $75,000 a year. And Congress is currently considering whether to approve another round of $1,400 stimulus checks. Those checks should be sent to everyone eligible, including individuals on Medicaid and in a nursing home or assisted living facility. 

The Federal Trade Commission (FTC) is reminding nursing home and assisted living residents that their stimulus checks are for them, not their facility. With the first round of stimulus checks, there were reports that facilities were taking the checks without residents’ permission. The FTC says that if nursing homes ask for a resident’s check, the resident should contact the state attorney general and the FTC. 

Medicaid recipients who receive a stimulus check that puts them above Medicaid’s resource limit will need to spend down the money within a year or risk losing benefits. The Social Security Administration has said that it will not consider stimulus payments as income, and that the payments will be excluded from a Medicaid recipient’s resources for 12 months. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

• Make a payment toward paying off debt.
• Make small repairs around the house. 
• Update personal effects. Buy household goods or personal comfort objects. Buy a new wardrobe, electronics, or furniture.
• Buy needed medical equipment, see a dentist or get eyes checked if those items aren't covered by insurance.

If you have questions about how you or a family member in a nursing home can spend the money, contact your elder law attorney.