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Martin Harvey Cohen

Martin Cohen’s Answers

15 total


  • Does my Mom need a financial Power of Attorney if she is widowed and I am the only child?

    My mother only has a couple months to live and has a will that only names me for inheriting all property and assets being left behind. Given the fact that she is widowed, I am her only child and her bank accounts are now joint accounts wi...

    Martin’s Answer

    Although you already have access to the joint accounts, if your mother becomes legally incapacitated, there are other matters that will require a guardianship unless you have a power of attorney. This assumes that your mother still has capacity to execute a power of attorney.

    I realize that you are in Washington and I strongly recommend that you obtain this advice from an elder law attorney in your state. Some of my comments may apply to your situation.

    Here are some examples of actions a Florida resident could accomplish with a durable power of attorney:

    If a parent (the principal) is injured in an accident or though the negligence of a nursing home, the agent under a power of attorney can bring a lawsuit on his or her behalf.

    If the principal needs nursing home care and cannot afford to pay, someone will need to file for Medicaid on his or her behalf. With the power of attorney, the agent can take the following actions, provided that the principal's power of attorney contains specific authority:

    • If the principal's income exceeds the Medicaid income cap for Medicaid financial eligibility, the agent must create a Qualified Income Trust. Authority for this can be included in the power of attorney.

    • One strategy for sheltering excess assets when applying for Medicaid is to join a Medicaid Pooled Trust and transfer excess assets into the pooled trust account. These assets can be used to supplement the principal's care.

    • With a power of attorney, the agent could create a personal services contract under which the agent would receive the bulk of the liquid assets without creating a penalty that would bar the principal from immediate Medicaid eligibility.

    These are just some examples of matters that can be accomplished with a properly drafted durable power of attorney. In each example, without a power of attorney, the family would have to pay substantial legal fees and costs to open a guardianship and additional legal fees for the attorney to petition the court to authorize the guardian to take each of the above actions.

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  • If I were on Medicaid and inherited a rental property would I have to give up Medicaid?

    In short if I were on Medicaid and inherited a rental property is there anyway I could retain both the property and remain on Medicaid? Or would I have to give up one or the other? Thanks.

    Martin’s Answer

    I agree with most of the comments provided by my colleagues. Of course, I recognize that you are in Ohio and should consult with a local elder law attorney. I suggest that you ask the attorney whether Ohio allows individuals receiving Medicaid nursing home benefits to own rental property. In Florida, if an individual owns rental property that generates rent commensurate with its fair market value, the net rent will be countable income and the rental property will not be treated as a countable resource. It is even possible to arrange for the property to pass outside of probate, thereby avoiding Medicaid estate recovery upon the death of the individual on Medicaid.

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  • Is the rent paid to an immediate family member for an apartment exempt from medicaid look back rules?

    Disabled person lives in an apartment owned by immediate family member. The disabled person pays monthly rent. The rental rate is consistent with the community practices.

    Martin’s Answer

    • Selected as best answer

    A penalty (waiting period) is imposed based upon the amount of uncompensated transfers (gifts) that you make within 5 years before you apply for Medicaid nursing home services. Mr. Friedman makes a good point about paying rent to family members. However, the arrangment may be okay if the landlord does not owe the tenant a duty of support.

    At a minimum, you should document the arrangement with letters from realtors familiar with the fair rent for this type of property and a formal lease agreement. Then the payments to the landlord should not be considered a gift.

    Of course, I suggest that you check this with a local Elder Law attorney to determine the Minnesota law, regulations and practices concerning your situation.

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  • Does gifting under the tax tree gift law exempt those assets from the medicaid nursing home look back period .

    My mon has been making cash gifts per the tax free gift law to her children/grandchildren on and off for about 8 years( $10,000 or less per year per child ). Will the gifts made withing 5 years of her possibly being admitted into a medicaid nu...

    Martin’s Answer

    Generally, I agree with the other answers. In particular, I agree with Mr. Silverberg's conclusion that you should stop the gifting practice now. Otherwise, is likely to delay their mothers etiquette eligibility if she ever applies under a state Medicaid program providing nursing home services.

    If you are concerned about preserving your mother's estate in the event that she should need home health care, assisted living facility care or nursing home care, I strongly suggest that you consult with an elder law attorney who is familiar with Medicaid and gift tax requirements. The attorney can show you how to continue the gift plan without restarting the 5-year lookback every time you mother makes a gift. The attorney should also discuss with you possibilities of preserving your mother's assets, just in case she should need care within the 5-year period.

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  • How can we legally change the name on a deed to my mother's name if she is now incompetent?

    If my mom can't care for her home anymore and she has dementia really bad, how can we we now get her home in a famliy member's name without us losing her house to the government, she does not have a mortgage but owns it out right?

    Martin’s Answer

    If you intend to file for Medicaid to pay for nursing home care or assisted living care, you should not transfer the title (assuming that you have a power of attorney that would grant you the power to make such a change). If you do, the Dept. of Children and Families will impose a penalty (waiting period) that would prevent your mother from being eligible for Medicaid for a period of time.

    On the other hand, your mother's home will be considered an exempt asset if she applies for Medicaid. When your mother passes away, if the home is left to her children, the state will have no claim against the home for amounts paid for her Medical care. So, you can see that it is generally better to leave the title alone.

    You should have a consultation with a local Elder Law Attorney. He or she can explain to you the Medicaid and VA (if applicable) programs that will help you pay for long term care services. If you would like to avoid probate, and you have a power of attorney that authorizes gifting of her property, ask the Elder Law Attorney about creating an enhanced life estate deed, sometimes referred to as a Lady Bird Deed. You can read more about this at the link that I have provided.

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  • In Florida, is Medicaid Estate Recovery limited to "Probate" assets -OR- does it also include Non-Probatable Assets ?

    IF a person, who has been covered by Medicaid in a Florida nursing home, dies leaving an IRA policy naming his 2 children as beneficiaries, can those proceeds be claimed by Medicaid to recover the Medicaid costs they paid out ? ( The IRA had been ...

    Martin’s Answer

    The Florida Medicaid Estate Recovery Act limits Medicaid estate recovery to nonexempt probate property. There would be no claim against the remaining principal in the IRA , even though the state is well aware of the existence of this IRA .

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  • I am concerned about the billing in an office where I am employed as a general dentist in ohio regarding ohio medicaid

    We are waiting for approvals from Medicaid of Ohio to begin making partial or complete dentures for patients. But the owners of the practice have recently told me to ask these Medicaid patients to upgrade their dentures to a premium quality for a...

    Martin’s Answer

    As a service provider, you should contact a local attorney who specializes in Health Law. Elder Law attorneys advise individuals regarding their eligibility for Medicaid services. Sometimes this gets confusing because both types of lawyers may describe themselves as health care lawyers.

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  • How many irrevocable trusts can you create in florida.

    Is there any limit

    Martin’s Answer

    The simple answer is that there is no limit on the number of trusts that an individual can create in Florida. If you wish to create an irrevovcable trust, I strongly recommend that you retain an attorney who understands the taxation of trusts.

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  • Is wife responsible for medical bills after husband's death?

    Elderly husband & wife of 20 years moved to an independent living facility in Florida from NJ. Husband of 92 has since been diagnosed with cancer & going for various treatments. He is only paying his Doctor bills. No other medical bills, which are...

    Martin’s Answer

    In Florida, the wife is not liable for the husband's medical bills unless she specifically guarantees those accounts. However, if there are assets titled in the name of the husband alone, such assets would have to go through probate upon his death and would be subject to the claims of creditors.

    There are at least two areas that should be explored carefully with an elder law attorney. The first is asset protection regarding the general creditor claims (medical expenses etc.) and the second is planning for long-term care custodial expenses for both spouses.

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  • My elderly father-in-law wants to pay us a monthly amount for room, board and care . Is it considered taxable income for us?

    His wife recently passed away, he is selling his house and if he were not with us, he would need to be in an assisted living facility.

    Martin’s Answer

    • Selected as best answer

    Generally, these payments would be considered part of your gross income for federal income tax purposes (and you may have state income tax issues as well). You should explore ways to structure the arrangement in a manner that will minimize income tax. In addition, you should investigate the availability of VA benefits (if he is an eligible veteran) and/or Medicaid (Medi-Cal) to pay for his future care. I strongly recommend that you find a local Elder Law Attorney who is familiar with public benefits for assistance in creating a plan for your father-in-law.

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