Can the state take my mom's home if she goes into a nursing?

Asked almost 5 years ago - Orlando, FL

I have been living with my mother since 2004. Mostly I cooked and helped with the cleaning and stuff but in dec 2007 she went into full dementia and required 24/7 care. I took a family leave of absense from my job and eventually had to quit in 2008 when that ran out. I am still unemployed and I am afraid I will end up homeless when my mom has to go into a Nursing home because everyone say that day will come.

Additional information

Can Medicaid take my mom's home and throw me out?

Attorney answers (3)

  1. Jeffrey Scott Goethe

    Contributor Level 13

    Answered . The short answer is that the State of Florida never takes the home to pay for nursing home care. The real questions are whether ownership will disqualify your mother from recieving Medicaid assistance and whether the state will seek reimbursement for the Medicaid benefits after your mother passes away.

    Florida law has some generous protections for a Florida resident's primary residence, referred to as "homestead protections". There are ways that a person like your mother can receive Medicaid assistance for nursing home care, even though she owns a home. Generally, a primary residence in Florida is not counted as an asset when the caseworker determines whether your mother qualifies financially for Medicaid assistance.

    Florida has also passed laws to have the person's estate repay the State for the Medicaid assistance they received. The laws do allow for the home to be treated as exempt, as long as certain requirements are met. That means the home could still pass to the heirs, even if there are not enough remaining assets in the estate to repay Medicaid. These rules do include some protections for an adult child who lived in the home to care for the parent.

    If your mother has advanced dimentia, it may be too late to do some of the planning that might have made the best of the circumstances, but you can still see where you stand. You should see an elder law attorney in the Orlando area because the Medicaid application process involves a local office and there are some differences in the ways that each office handles certain issues.

    Also, beware of persons who are not licensed attorneys, but claim to be Medicaid consultants. Some of the issues you may be facing involving legal advice which can only be given by a licensed Florida attorney. Especially with issues like homestead, Florida law can be compicated.

    I hope this helps.

    My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

  2. E. Alexandra Golden

    Contributor Level 19

    Answered . Based on the facts that you presented, you may qualify as a "caregiver child." This is a special exception to the Medicaid rules that applies where a child has lived with and provided care to a parent for at least two years before the parent entered a nursing home. Each state has its own rules about what proof needs to be provided to the Medicaid agency to show that you are a caregiver child. If you do qualify as a caregiver child under Florida's rules, the house can be transferred to your ownership as long as there is legal authority for you to sign a deed on her behalf (either a durable power of attorney signed when she was competent or a court order).

    You need to speak with a Florida elder law attorney concerning this issue -- this is NOT self-help law. I've posted a link to the Elder Law section of the Florida Bar Association -- click on the "find a lawyer" button at the top of the page.

  3. John William Callinan

    Pro

    Contributor Level 10

    Answered . I would recommend consulting with local counsel, preferably a certified elder law attorney.

    I agree that based upon the facts you presented, you may qualify for the caregiver child exception to the Medicaid program's transfer of asset rules. The care must have been such that you kept your mother out of a nursing home for at least two years prior to her entering the home and you must have lived in her house during that time period.

    consult local counsel. it may be very much worth it.

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