Skip to main content

How does one protect property if elderly has to go in to nursing home?

Baltimore, MD |

My mother lives in Delaware and owns a home. She is 89 years old and wants to make sure the house goes to me. How do you protect the property so that is does not get taken if she would need to go in a nursing home.

+ Read More

Attorney answers 2

Posted

I am an elder law attorney in PA, so I cannot specifically comment on the law in your state. However, the Medicaid program is very similar in most states, especially regarding assets such as the home. The good news is that your mother can keep the home while the state pays for care, since the home is considered an exempt asset. However, the state will go after the home after she passes away under the estate recovery program. The problem is one of timing. If only her name is currently on the deed, and she gives it to you at this point, there may be a penalty imposed by the state. If you give away property you must do so before the 5 year look back. The state looks back 5 years from the date you need nursing home care. If you made a gift within that time period, a penalty would be imposed. The penalty is a period of time in which the state will not pay for nursing home care (if you give a gift of a 70,000 home the penalty is 10 month (70,000 divided by the 7,000 average cost of care each month)

Since your mom is 89, it is risky at this point to make a gift, since she may well need nursing home care within the 5 year look back. However, there are some exceptions. For example, in PA, and possibly in your state, a caregiver child (a child who lives with the parent for 2 years and provides some care to the parent during those two years to keep the parent out of a nursing home for that period of time) can receive a gift of the home. If you fall within that scenario, your mom can gift the home to you and not be penalized, even if she needs nursing home care within 5 years.

You should see an elder law attorney in your area to allow him to specifically look at the facts of your case. Most will give you a free 20 minute consultation. The important thing is you should see an attorney sooner than later and before your mom does anything with with the deed of the property.

Thank you and good luck!

Posted

I am an elder law attorney in PA, so I cannot specifically comment on the law in your state. However, the Medicaid program is very similar in most states, especially regarding assets such as the home. The good news is that your mother can keep the home while the state pays for care, since the home is considered an exempt asset. However, the state will go after the home after she passes away under the estate recovery program. The problem is one of timing. If only her name is currently on the deed, and she gives it to you at this point, there may be a penalty imposed by the state. If you give away property you must do so before the 5 year look back. The state looks back 5 years from the date you need nursing home care. If you made a gift within that time period, a penalty would be imposed. The penalty is a period of time in which the state will not pay for nursing home care (if you give a gift of a 70,000 home the penalty is 10 month (70,000 divided by the 7,000 average cost of care each month)

Since your mom is 89, it is risky at this point to make a gift, since she may well need nursing home care within the 5 year look back. However, there are some exceptions. For example, in PA, and possibly in your state, a caregiver child (a child who lives with the parent for 2 years and provides some care to the parent during those two years to keep the parent out of a nursing home for that period of time) can receive a gift of the home. If you fall within that scenario, your mom can gift the home to you and not be penalized, even if she needs nursing home care within 5 years.

You should see an elder law attorney in your area to allow him to specifically look at the facts of your case. Most will give you a free 20 minute consultation. The important thing is you should see an attorney sooner than later and before your mom does anything with with the deed of the property.

Thank you and good luck!