Long Term Care Answer Book

What questions do you have on Florida elder law? In this section, we answer a number of frequent questions we hear each and every day in our law firm.

1. How can I pay for my Long-Term Care Needs?

Long-Term care can be paid privately, through long-term care insurance, utilizing a Medicaid Program, or Veteran’s Administration’s Aid and Attendance Program.

2. How much does Long-Term Care cost?

Nursing homes generally cost approximately $7,000 per month.  Assisted Living typically costs between $2,000 and $5,500 per month based on the services provided.  Home health care provided by a certified nursing assistant typically costs $12-$22 per hour.

3. When is a good time to start Long-Term Care Planning?

Becoming educated about your Long-Term Care Planning options sooner rather than later is always best. The sooner you are educated and possibly commence a Long-Term Care Plan the more options you will have. The federal and state laws are in a constant state of flux. Having a knowledgeable attorney in your corner is the basic building block to making sound and informed decisions when formulating a Long-Term Care Plan

4. Should I get a Long-Term Care?

Your best defense against the costs of long-term care is being educated and knowing your options.  Having Long-Term Care insurance provides an additional line of defense in obtaining the care needed, while protecting assets.  However, there is no blanket answer as to who should obtain long-term care insurance.  There are numerous factors, such as your health, the costs of the basic insurance, the various options available on the insurance, such as a cost of living rider, among other, which are all relevant in making the decision to obtain a long-term care insurance policy. Knowing your options is free.

5. What Long-Term Care Programs are available through Medicaid?
  • The Home and Community Based Care Program (10-15 hours of help at home per week).
  • The Assisted Living Diversion Program (approximately 50 facilities participate in Brevard County).  The majority of the nursing homes in Brevard County participate in this Program.
6. Is there an income limit to be eligible to receive Medicaid benefits?

There is a gross monthly income cap in Florida, but exceeding the gross monthly income does not make an individual ineligible to receive Medicaid benefits. If the gross monthly income cap is exceeded by the Medicaid applicant, a special Medicaid Trust is needed.

7. What assets can I have and still be eligible to receive Medicaid benefits?
  • If you are single:  a homestead home with an equity interest in the amount not to exceed $525,000; a vehicle of any value; any vehicles seven (7) years or older (no collector’s items or motor homes); prepaid irrevocable burial arrangements; a burial fund of up to $2,500; term life insurance; life insurance with an aggregate face value of $2,500 or less; and $2,000 of other assets (generally tangible personal property is not counted).
  • If you are married:  you can have a homestead home of any value and the healthy spouse can have $113,640 of assets in addition to the assets listed above.
8. What is the current "look-back" period for gifting of assets prior to applying for Medicaid benefits?

The present federal look-back period is five (5) years for gifts.  It has been three (3) years in the past.  Florida adopted the federal five (5) year look-back period for gifting in January 2010.

9. What do I do if I want to apply for Medicaid benefits now, but have made gifts within the past five (5) years?

Florida Medicaid Rules permit an individual to “undue” previous gifting and erase the penalty period associated with the gift, thereby making the individual potentially eligible to receive Medicaid benefits.

10. Does giving an amount within the federal annual gift tax exclusion, such as $13,000 per year per individual help with Medicaid Planning?

No. Although gifting within the federal annual gift tax exclusion is legal, Medicaid still assesses a penalty of ineligibility to be able to receive Medicaid benefits for the gift being made.

11. If I have not previously taken any action to protect my assets from the costs of long-term care, is it too late if I need care immediately?

No.  It is never too late to have a Medicaid Plan.  Many of the planning techniques can be implemented at the time of the need (although it is preferable to plan in advance to optimize your planning technique choices).

12. If I have long-term care insurance, am I still eligible to receive Medicaid benefits or VA Aid and Attendance benefits?

Yes.  Benefits paid from a Long-Term Care insurance policy are considered income for both Medicaid and VA Programs.

13. Can I “save” my benefits under my Long-Term Care insurance policy for later, and apply for Medicaid now?

No.  Medicaid is a benefit of last resort, so you must apply for any and all benefits you may be entitled to at the time you are applying for Medicaid benefits.

14. What if I have more assets than the exempt assets listed above? Can I still be eligible for Medicaid?

Nearly anyone can legally become eligible to receive Medicaid benefits if they receive competent and up to date legal advice.  The biggest mistake is failing to meet with an attorney and becoming educated about your options.  Do not assume that you cannot become eligible for Medicaid regardless of your current asset situation.

15. My spouse and I have a Prenuptial Agreement. Do my assets count towards my spouse’s Medicaid eligibility?

Medicaid does not recognize Pre-Nuptial Agreements.  Assets of both parties count toward the one spouse’s Medicaid eligibility.  However, there are Medicaid Planning techniques to eliminate this issue.

16. How long does it take to get Medicaid benefits?

Generally, Medicaid nursing home benefits are available immediately.  However, there is a waiting list for the Home and Community Based Care Program and the Assisted Living Program.

16. How long does it take to get Medicaid benefits?

Generally, Medicaid nursing home benefits are available immediately.  However, there is a waiting list for the Home and Community Based Care Program and the Assisted Living Program.

17. If my spouse’s income all goes to a nursing home for his/her care, I will not have enough income to live on. What can I do?

The Medicaid Programs provide for a diversion of the institutional spouse’s income to the community spouse based on each individual’s gross monthly income and housing costs.

18. Will I be forced to divorce my spouse to get him/her the care they need without losing all of my assets?

Divorce is almost never the answer.  There are various legal planning techniques which can be implemented without the necessity of divorce.

19. Is my homestead home safe from the costs of long-term care?

Yes.  Both Florida Medicaid Law and VA Aid and Attendance permit an individual to own a homestead home and still become eligible to receive benefits.  The Florida Constitution protects homestead homes post-death when the decedent has heirs at law.

20. Do the assets in my Revocable Living Trust count towards Medicaid and VA Aid and Attendance eligibility?

Yes.  However, Revocable Living Trusts are helpful because, if funded properly, they avoid probate after death and can control the timing and amount of distributions to beneficiaries.

21. What is the VA Aid and Attendance Program and what are the requirements to be potentially eligible?

If a person served in the United Stated military during a war time declared by the US Congress and the Veteran served at least ninety (90) days of continuous service, one day of which is during a declared wartime, with no service connected injury, then the veteran may be eligible to receive a monthly payment for use to pay for long-term care.

22. What is the maximum amount a veteran can receive from the VA for Aid and Attendance?

Over $2,000 a month for the veteran and over $1,300 a month for the surviving spouse of a veteran.

23. What happens if you are the surviving spouse of a veteran and re-marry a non-veteran?

The VA Aid and Attendance benefit is lost.  However, if your last spouse was also a veteran, you would become eligible through their military service.

24. Where can VA Aid and Attendance benefits be utilized?

Generally VA Aid and Attendance benefits are only receivable at home or in an assisted living facility, and they drop down to $90 a month in a nursing home.

25. How do you apply for VA Aid and Attendance and how long does it take to receive any benefits?

VA Aid and Attendance benefits can be applied for through your local VA Office.  All applications are processed in Philadelphia, PA, and take at least seven (7) months to process.  VA benefits are paid retroactive to the date of application after they are approved.

26. Is there a look-back period for gifting when applying for VA Aid and Attendance?

Presently, as of December 2012, there is no look-back period for gifting when applying for the VA Aid and Attendance Program.  However, there is federal legislation pending which would make a three (3) year look-back period for gifting.  However, Medicaid has a five (5) year look-back period and many times an individual may need to qualify for Medicaid benefits also.

27. Can I qualify for both Medicaid and VA Aid and Attendance Programs?

Under the present law, an individual can receive benefits under both the Medicaid and VA Programs.

28. Is there an income limit to receive VA Aid and Attendance benefits?

No. VA Aid and Attendance benefits are based on UME’s (uncovered medical expenses).

29. Is there an asset limit to be able to receive VA Aid and Attendance benefits?

Yes, there are asset limits to VA Aid and Attendance.  The asset limit is based on an internal sliding scale based on the age(s) of the individuals.

30. Are there exempt assets when qualifying for the VA’s Aid and Attendance Program?

Yes.  Your homestead home, your vehicle, your burial arrangements, and term life insurance are among the exempt assets.

31. If you are married, whose assets count toward eligibility for the VA Aid and Attendance Program?

Both the husband and wife’s assets are counted when determining eligibility for the veteran for the Program.

32. If I am married, do I need a Durable Power of Attorney for my spouse?

Regardless of how long you have been married, a spouse cannot sign on behalf of the other spouse by virtue of being married. Often people confuse this issue because they have access to most assets due to the fact that they are held in the spouses’ joint name.  However, in dealing with some assets, such as retirement accounts and real property, a spouse needs the other spouse’s Power of Attorney.

33. I have an old Power of Attorney. Do I need to do a new one ever?

Third parties, such as financial institutions, do not take their obligations with regard to honoring a Power of Attorney lightly.  Generally, all Powers of Attorney are screened by the financial institution’s Legal Department.  If there is even the slightest reason, a Power of Attorney may be rejected.  Therefore, keeping your Power of Attorney up to date is important.  The last change to the Power of Attorney Statute in Florida was in November 2011.  If you are older or have health issues and you are naming the same Agent in the Power of Attorney, you may want to keep the old document.  Also, you may want to obtain a note from your physician indicating you are competent and retain same in your and your attorney’s records.

34. When does a Power of Attorney become effective?

In general, at the time a Power of Attorney is signed, it becomes effective.  There are Powers of Attorney which are “springing” and go into effect upon an illness, but these are relatively rare and present another obstacle that an Agent attempting to use the Power of Attorney must prove to a third party to have their authority recognized.

35. Can I have more than one person act as my Agent under a Power of Attorney?

Yes, multiple Agents can be listed in a Power of Attorney acting together, acting individually or acting in succession.

36. Does my power as an Agent under a Power of Attorney exceed or “trump” that of the person who created the Power of Attorney?

No. An Agent under a Power of Attorney does not have the power to trump the authority of the creator of the Power of Attorney.  Even if an individual has created a Power of Attorney, a guardianship can be necessary if the individual will not take actions in their own best interest (such as ceasing to drive when the doctor indicates they cannot drive).  The individual who created the Power of Attorney can also revoke the Power of Attorney at any time.

37. When does a Power of Attorney cease to be effective?

At the time of the death of the individual, if the individual revokes the Power of Attorney, or if a guardianship action is commenced for that individual.

38. What is the effect of a doctor stating an individual has dementia or is incompetent in that individual’s medical records?

While this may be evidence of incompetency, it does not make an individual incompetent.  Only a Judge can declare an individual legally incompetent through a guardianship action.

39. Why do I need a Health Care Surrogate?

If you are unable to make your own medical decisions and you do not have a Health Care Surrogate nominated, the Florida Statutes provide a “proxy” which contains the default order of who would make your medical decisions for you.

40. How do I get started with the Long-Term Care Planning process?

Although there are many sources to obtain information such as books, friends, relatives, the internet, financial professionals and other people in the industry, unfortunately, much of the information available is either inaccurate, outdated, too technical, or too watered down.  The Medicaid Law is state specific.  The best source of information is a knowledgeable attorney who has years of experience practicing in the field of Long-Term Care Planning and who keeps up with the ever-changing federal and state laws which govern your options when implementing a Long-Term Care Plan.

41. What are the general steps to apply for Medicaid?
  • Gather the documents required for Medicaid
  • Copy, organize and audit the file to determine what is missing.
  • Make sure the countable assets and income are under Medicaid’s caps.
  • Determine if a Qualified Income Only Trust is needed due to excess gross monthly income.
  • If there is a spouse, determine if they are entitled to any Medicaid Diversions (a means to increase the healthy spouse’s income using the Medicaid applicant’s income).
  • File Medicaid application.
  • Supply the Medicaid Office with documentation.
  • Notify the nursing home we are applying for Medicaid.
  • Make sure the doctor fills out the 3008 level of care form.
  • Apply to the VA, as Medicaid is a benefit of last resort.
  • Supply all documentation to the Medicaid Office necessary to complete the application.
  • Wait for Medicaid approval.
  • Choose a Medicaid provider.
  • If Transitioning down from a nursing home to an Assisted Living facility:
  • After at least 60 days on Medicaid, the applicant can participate in Medicaid’s Transition Down Program and avoid the 25,000 person waiting list in Florida for Medicaid’s Home or Assisted Living Program.
  • Do a CARES Unit referral so that they can measure the applicant’s medical needs to see if she can safely go to a lower level of care.
  • Re-apply for Medicaid benefits.
  • Go back home or to location an appropriate Assisted Living Facility.
  • Meet with Provider, develop a Plan of Care and a care manager is assigned.
  • Deal with lump sum payment from VA:  part is income and part is assets; need break-down of same from the VA as may be applicable.
  • Comply with annual re-certification of benefits requirements of Medicaid and VA.