There are some limited ways of protecting some of the assets. First, as long as your mother is living in the home, it is not a countable asset. She is also allowed to keep $115,920 as her community spouse resource allowance (CSRA). The remaining funds in excess of the CSRA may also be partly protected, but it has to be done in the right way.
Your mother needs to see an elder law attorney ASAP for a thorough review of her assets and whether the legal documents which they may have in place allow for asset protection planning or if the court may need to issue an order which would get all the assets into your mother's name. I've practiced elder law for 15 years in the Boston area, and would be pleased to assist.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
You probably will not like this answer but the best thing for your parents to do is sit down with an experienced elder law/ estate planning attorney to discuss what options they have and what will work best for them. Medicaid or MassHealth generally has the right to be paid back for services rendered and may place liens on certain assets but there are ways to protect their assets as well. Have them consult an attorney to discuss in detail their options. Best of luck.
Please be sure to mark if you find the answer "helpful" or a "best" answer. (It lets us know how we are doing.) Attorney Kremer is licensed to practice in Massachusetts. Please visit her Avvo profile for contact information. In accordance with Avvo guidelines, the following disclaimer applies to all responses given in this forum: The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.
Medicaid planning is a very complex area of the law. If this is your first time dealing with it, you probably won't be able to figure it out. Most attorneys shy away from it. You need the help of an experienced elder law attorney to chart the right course. Attorney Golden is knowledgeable and has a good repiutation as an elder law attorney. Do yourself and your family a favor and take her up on her offer.
Most of this property, if not all, can be kept aside so long as your mother isn't also receiving MassHealth-subsidized services herself, particularly long-term care. But as with your father, any gifting on her end will cause penalties if she comes to need such care in the next five years. You should really sit down to discuss this situation with an experienced local elder law attorney to engage in the proper planning on both ends. There are many subtleties to the beauracracy involved - and which are highlighted differently depending on the amount of money, care needs, and general health - that are really not possible to navigate effectively on their own. Most attorneys will offer a free consultation.
Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any readerâ€™s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.
Notwithstanding all of the other attorneys' suggestions (which I'm sure is good advice), I have a suggestion if it comes to the point where you will need to spend down some of their $200,000 (i.e. after keeping your mother's share, etc.). I am 'pasting' my answer (below) to a question I answered several weeks ago, but it may be relevant in your case...
Pasted Answer Begins:
At this point, it may be too late to gift money to their children. You may want to consider, though, spending down his money now to save the family money later. Specifically, you can pre-pay his funeral costs now without any Medicaid/MassHealth penalty. Any funeral home will know how to proceed with establishing an irrevocable funeral trust. You would not need an attorney to do this. Also, he can open a savings account at any bank (called a burial/funeral savings account) with up to $1,500, which can be accessed after his death to pay (or reimburse those who paid) for his funeral or burial costs. Lastly, you may want to consider paying an attorney (now, before he spends down the money on nursing home costs) to assist with the Medicaid/MassHealth application process. The process (and application) can be a nightmare for loved ones because it is long, complex and extremely time-consuming. Once my clients realize how involved the Medicaid/MassHealth application process is, they generally opt to pay an attorney to represent them; particularly when the money would otherwise go to a nursing home. I had to deal with this issue personally when my father and grandmother had to be placed in a nursing home. I know how difficult it can be emotionally; and I'm glad my family and I took advantage of the three options outlined above. Best of luck to you and your family as you face this difficult road.