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Robert C. Gerhard III
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Robert Gerhard’s Answers

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  • Grandma received Medicaid and I found life ins policy after the fact. Checks were delivered to grandkids. $4000 to each of us.

    We all were named beneficiaries, but I guess should have been given prior to medicaid people by me, three years ago. Their is no estate. I am executer of will though. Should we just keep in a savings account, or what should I do now? I did not...

    Robert’s Answer

    The application for Medicaid long-term care benefits requires full disclosure of assets to the best of the applicant's knowledge. Both Pennsylvania and federal law impose criminal penalties for knowingly and intentionally failing to disclose facts regarding resources during the Medicaid application process. 42 U.S.C. §1320a-7b; 62 P.S. §1408. I suspect that the failure to disclose here was not intentional, so the main potential problem here is likely the existence of an "overpayment." In other words, some Medicaid benefits were likely paid for your grandmother in error because of undisclosed resources. If the state learns of the overpayment, the Office of Inspector General will seek repayment from those in possession of the undisclosed assets, per 62 P.S. §1408(c)(6)(i), even though there is no probate estate. The Department of Human Services' Division of Third Party Liability may be in touch with you. It is also possible, however, that even with the life insurance your grandmother might still have been eligible for Medicaid long-term care benefits. For example, this could be the case if the life insurance policy was a "term policy" with no cash value, even though there was a significant death benefit. In that scenario is entirely possible that no overpayments occurred because your grandmother was not in possession of property in excess of her resource limit. An elder law attorney can review the facts and provide specific advice on the proper course of action. I would recommend that the money not be spent by the grandchildren until it is determined whether or not an overpayment has occurred. If an overpayment has in fact occurred, the lawyers for the Department of Human Services have historically been open to working with those who come forward to set things right. I do recommend that communications with the Department be conducted with the assistance of an elder law attorney who has reviewed the specifics of your case.

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  • Mom in nursehome, Medicaid approved, welfare said to put $6k aside for her for expenses. she died, can we keep it? Pennsylvania

    All her assets were spent down except this expense account - under my name and hers - there is $5,600 left (not much spent on expenses). She passed away 6 months ago, I haven't heard from the state about trying to collect any money. I notifie...

    Robert’s Answer

    A jointly owned bank account should not be subject to Pennsylvania's Medical Assistance Estate Recovery Program because it is a non-probate asset. I have provided a link to the relevant regulation in the Public Welfare Code: 55 Pa. Code Section 258.3(b). You will want to be prepared to supply a copy of the signature card showing the date the account was titled to reflect joint ownership with you with rights of survivorship. The account would still be at least partly subject to PA inheritance tax, which is 4.5% on funds passing to children.

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  • My mother is in a nursing home in New Jersey but intends to return to her home in Pennsylvania.

    Can we apply for Medicaid for her in Pennsylvania? How can we prove Residency in PA that will be acceptable by DPW?

    Robert’s Answer

    According to the PA DPW Long-term Care Handbook and the PA Public Welfare Code, there is no minimum time that an individual must live in Pennsylvania. When a person from another state is admitted to an LTC facility in Pennsylvania, the County Assistance Office where the LTC service is being received must treat that individual as a Pennsylvania resident and decide whether the individual is eligible for MA LTC benefits. (PA Long-term Care Handbook Chapter 423, 55 Pa. Code §148.1) This would also apply if your mother plans to return to her home and would need Medicaid long-term care benefits to cover home and community-based services.

    Technically, an application may be filed by a resident prior to the need of service. 55 Pa. Code Section 125.84. However, I would recommend calling the supervisor of the long-term care unit of the DPW County Assistance Office in the county to which your mother is returning asking whether they will review such an application at this time, if that is your hope. You can also call that county's Area Agency on Aging and ask for help.

    Before moving back to Pennsylvania and applying for MA-LTC benefits, I recommend that you consult with an elder law attorney in Pennsylvania in order to identify potential problems that might occur in the application process. This is especially true if your mother is already approved for benefits in NJ and a move to PA would require a re-application and risk potential disruption of existing benefits.

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  • My 88 year old mother has dementia. Refuses to leave her home. I am her caretaker and she throws me out each week.

    She then calls people crying that she is alone. I have power of attorney. She went into a home for a evaluation and refused to stay. What can I legally do.

    Robert’s Answer

    • Selected as best answer

    This is a worrisome and difficult family situation and one that should be handled with sensitivity. You should consult with an elder law attorney to determine whether guardianship proceedings may be necessary. The authority set forth in the power of attorney document may not be enough to address the situation that is unfolding. Your mother is presumed to have "capacity" and the right to be alone if she wises to be left alone - if she is of sound mind. If, however, she is of diminished mental capacity and is not able to act in her own best interests, then you may find it appropriate to file a petition to be appointed "guardian of her person." Medical testimony would be needed to document her mental condition by clear and convincing evidence. Once appointed as guardian you would then have authority take measures needed to provide for her safety, which could include in-home aides or relocation to a safer environment such as a personal care home or assisted living community. As mentioned earlier, this is a very challenging situation, but one that can be approached by way of guardianship proceedings if necessary. You should consult with other family members before proceeding with a guardianship petition.

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  • Medicare for Nursing Home Care

    My elderly parents live in PA and my dad might be going to a nursing home. When determining the community spouse resource allowance, do you know if the cost of health insurance (almost $500 a month for my dad and $300 a month for my mom) is taken...

    Robert’s Answer

    Generally speaking, the Medicaid recipient's income (dad's income) would be due to the nursing facility less certain deductions. The cost of his health insurance is deducted from what of his income is owed to the facility. I.e., he can keep his supplemental health insurance in place, if desired. There are other potential deductions from income, notably a potential spousal allowance of income if your mother's monthly income is below her "monthly maintenance needs allowance." Absent exceptional circumstances, your mother's resource allowance would not be increased by the existence of a health insurance premium, nor would her monthly maintenance needs allowance be increased. There are ways to increase the resource allowance and spousal income allowance through appeals where there are facts demonstrating exceptional circumstances resulting in undue financial duress. A meeting with a local elder law attorney should result in clarity on this question. In Pennsylvania the resource allowance and spousal allowance of income are fact specific determinations which vary from case to case.

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  • Will the state of Pennsylvania take the home of someone who medicaid took care of in a nursing home?

    The only thing my mother in law had was her home. She passed in January. Need to decide whether to sell the home, or wait and see if the state takes it for taking care of her upkeep in the nursing home.

    Robert’s Answer

    Under Pennsylvania law, the duly appointed personal representative of your mother's estate has a legal obligation to request a statement of claim from the Department of Public Welfare's Estate Recovery Program. Before you become personal representative of your mother's estate, you or the person to take on that role should first consider what is going to be involved, and make some assessment as to whether the estate is solvent. The estate recovery claimi may not be as large as you believe, or it might eclipse the value of the house. An initial meeting with an estate/elder law attorney will help you make this determination. You may want to call the Estate Recovery Program at (800) 528-3708 or write to them at P.O. Box 8486, Harrisburg, PA 17105-8486 to see if the will let you know the amount of the claim before you agree to serve. They have done this in the past for other clients of mine. The Commonwealth of Pennsylvania does not "take" the house in the normal sense of the word, but in the end the house proceeds may well go to the Commonwealth, and we might agree in such situations that they, the state, essentially gets the house. In fact, the bulk of the $36.6 million collected by the PA estate recovery program last year was from the sale of the homes of deceased MA-LTC recipients. The estate recovery regulations can be found at www.pacode.com, 55 Pa. Code §258 et seq. Pennsylvania law places a legal duty on the executor or administrator of the estate to request the statement of claim. If the estate's personal representative does not not properly pay the DPW claim in accordance with the PA priority statute, then that person can be held personally liable to the extent he or she sold the house and misapplied the sale proceeds. Pennsylvania law also allows DPW to administratively assess liability, say if the house was deeded to a family memberby the estate's personal representative without addressing the claim. This would be extreme, and I believe their use of this remedy is extremely rare. If no estate is opened, then the Commonwealth maintains a list of attorneys who have volunteered to administer unadministered estates for a fee, and in that way you might find that the state eventually and indirectly "takes" the house by having a third party appointed to serve as administrator of the estate. In my experience this only happens when the estate is completely neglected and family members do not respond to letters from DPW, or the family of the decedent voluntarily requests the Commonwealth to have someone handle the estate. You should know that there are certain situations where estate recovery is waived, or postponed, especially in instances of undue hardship defined in the regulations, see link below. The estate recovery claim tends to take priority over most other creditor claims against estate assets, but the estate administration fees come ahead of the state's claim, including reasonable executor's fees and attorney's fees. You should know that administering an insolvent estate is definitely not a simple matter, so think twice before taking on the responsibility of serving as personal representative of an insolvent estate. That being said, many of our clients choose to administer their parent's insovent estate even when the majority or all of the estate assets must satisfy the Commonwealth's claim, if for no other reason than they feel a familial duty to conclude a parent's financial affairs. You do not have a legal duty to take on the job, but if you do so then you must handle matters properly or you could face potential personal liability, so definitely hire a lawyer to provide guidance each step of the way. I hope this helps.

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  • Can a senior citizen (83) sell property without losing her medicaid benefits?

    A woman, 83, widow, on medicaid desires to sell rental inherited from deceased husband. She has an offer through a broker. She fears losing medicaid benefits if she sells and uses the funds to pay off all her debt. Is there a proper way to sell an...

    Robert’s Answer

    In general, a recipient of Medical Assistance long-term care benfits has an ongoing duty to report changes to the state Medicaid agency. In Pennsylvania the sale of the real property would need to be promptly disclosed to the Department of Public Welfare's County Assistance Office. In some states you may have the obligation to notify the agency that a given property has been listed for sale. (Hopefully the receipt of the inheritance was already promptly reported. If not then you'll want to be careful about using the sale proceeds to pay-off debt because overpayments of benefits could have occurred during the time when the asset had not been disclosed.) The sale proceeds will likely temporarily place the Medicaid recipient over her resource limit until the excess resources (sale proceeds) can be spent-down. The prompt spend-down of the sale proceeds (excess resources) on her own debts should not give rise to a period of ineligibility for benefits. Be aware that the Medicaid caseworker is likely to scrutinize the debts and want to be assured that the debts are in fact hers, and legitimate. The way to help make sure the sale and pay-off of the debt will not give rise to an improper discontinuance of benefits is to communicate with the ongoing caseworker and let that person know she plans to sell the real estate and pay-off her debt. Request that the caseworker hold-off on discontinuing benefits and promising to send in written verification of the spend-down, i.e., copies of the bills, checks paying the bills, and bank statement or print-out from the bank verifying the payments. By having this advance conversation with the caseworker you are more likely to avoid the discontinuance of benefits and avoid the need to re-apply for benefits. As mentioned in the first answer, you absolutely should have experienced legal counsel providing help during the spend-down. With monthly nursing home expenses being what they are, a mistake here can be quite costly. Hope this helps!

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  • Do I need to disclose savings bonds when my Dad applies for Medicaid?

    My Dad has been in a nursing home since Nov '12 paying private pay because he didn't qualify for Medicaid because of assets...his funds however, will soon be running low and he will need to apply. He recently asked me to clean his belongings out o...

    Robert’s Answer

    I've pasted a link below where you can look into replacing lost savings bonds. To answer your question, he clearly needs to disclose known assets. If not disclosed and Medicaid benefits are authorized then "overpaymet of benefits" will occur whether or not you participated in the non-disclosure. In Pennsylvania the Office of Inspector General will investigate and pursue overpayments, even in the future, and even after your father's passing. Your state probably has a similar office charged with the same task of recouping overpayments. An accusation of Medicaid fraud is just not something you'll want to deal with, so I definitely recommend that you play it straight. The Medicaid recipient has an ongoing duty to disclose assets. If you do need to help your father apply for Medicaid, hire a local elder law attorney to assist with the paperwork and don't rely on the nursing home business office to handle the application process. There may be legal ways to protect some of the money, depending on the facts. Hope this helps.

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  • Personal Aide to elderly - medical expense? Taxes? W-9?

    My 97 - y . o . mother has a home attendant whom she paid 1 , 100 weekly , by check ( nearly 60S ! ) . Can I count this as a medical expense toward taxes ? We recently let her go so I doubt that she will supply us with her social securit...

    Robert’s Answer

    Monies paid to a home attendant can be deductible in certain circumstances. I've included a link to I.R.S. Publication 502, that discusses deductiblity of attendants for maintenance and care of the chronically ill as medical expenses. I think an issue is that for this to be deductible for mom then the attendants must have been providing help pursuant to a plan of care prescribed by a licensed health provider. Check out Publicaton 502. Of course mom has compliance issues of her own given that it appears this person has been paid under the table. I agree with the prior post on this question that you ought to see a CPA in order to get those issues ironed out before mom tries to claim a deduction. Hope this helps!

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  • Wife died, never in a nursing home, received Medicaid Benefits 6 mos. Ins ck pd to estate. Will they take insurance benefits?

    Wife didn't designate me as beneficiary and small insurance check was payable to estate of. Will Medicare require part of this for repayment of benefits? Like I said, she was never in a nursing home.

    Robert’s Answer

    There would be no recovery for Medicare benefits. If you are inquiring about repayment of Medicaid long-term care benefits through your state's "estate recovery program", then you should know that Federal law provides that estate recovery is not required during the lifetime of a surviving spouse. See, 42 U.S.C. §1936p(b)(2). Depending on your state's estate recovery law and regulations (which can not be more restrictive than federal law) there may be "postponement of recovery" and a need to hold and use that money in a certain fashion during the lifetime of the surviving spouse. That is the case in my state, Pennsylvania, depending on the amount. As touched upon in the prior post, estate recovery rules apply to Medicaid funded long-term care whether provided in a nursing facility or in the community. Again, there should not be estate recovery during the lifetime of a surviving spouse.

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