When Am I Going Home?

By: Anthony J. Enea, Esq.

My clients and their families regularly tell me that their spouses and loved ones who are admitted to a nursing home or rehab facility regularly ask them... "When am I going home?" It has been my experience that the vast majority of seniors would prefer to age in their own home rather than a nursing home and/or other long-term care facility.

The decision of whether one will be able to age at home is contingent upon a number of factors, such as one's finances, eligibility for the Medicaid home care services, physical and mental condition, the level of care one requires and whether the home is suitable and/or can be made suitable to serve one's needs.

It is a decision that is both complex and heart wrenching for the persons placed in the position of making the decision. I have experienced first hand the emotional toll the decision to place a mother, father and/or grandparent in a home inflicts upon oneself and the family members involved.

Fortunately, in New York City, the five boroughs, Westchester, Rockland, Putnam and immediately adjacent counties, the Medicaid home care program is accessible and an obvious first alternative to nursing home care. Perhaps, the most important factor in making Medicaid home care such an important first option is that unlike eligibility for nursing home Medicaid, there is no five year look back period for the uncompensated non-exempt transfer of assets (gifts) with respect to eligibility for home care Medicaid.

If one were to transfer all of their non-IRA/ non retirement assets to their children and/or a Medicaid Asset Protection Trust, for example, on the first of the month following the transfer the applicant would be financially eligible for home care Medicaid services. Additionally, as with the Medicaid nursing home program, the home care program also permits the spousal impoverishment rules. Thus, if assets are transferred from an ill spouse to the well spouse, the well spouse can refuse to utilize their assets and income to support the ill spouse, and can instead execute a spousal refusal letter. This would allow the ill spouse to become eligible for nursing home and/or home care Medicaid subject to Medicaid's right to pursue a claim against the refusing spouse for the value of the services Medicaid provided.

If the option of avoiding a spousal transfer and executing a spousal refusal is available either because the well spouses assets and income are below the community spouse resources and income allowance or because both the applicant and spouse are willing to transfer their non IRA/ non retirement assets to a Medicaid Asset Protection Trust and/or to their children or others, then executing a spousal refusal letter and its financial consequences can be avoided.

The eligibility requirements for Medicaid home care require that the applicant necessitate assistance with the activities of daily living (walking, dressing, bathing, toileting and cooking). From a financial eligibility perspective, the applicant, if single, can have no more than $15,450 of savings and no more than $879 per month of income. If the applicant has more than $879 per month of income, they can enroll in a Pooled Community Trust managed by a charity, and their income above the $879 can be utilized to pay their expenses for housing, clothing, food, heating, electrical, gas, taxes and insurance, etc. If the Pooled Community Trust is not utilized by the applicant, however, they would lose their monthly income in excess of the $879. For a couple residing in the community needing home care they can have up to $1,287 per month of income and $22,800 of savings.

In conclusion, there are numerous beneficial reasons for one's health and mental well being to remain at a home as long as possible. The Medicaid home care program in New York provides seniors with a significant incentive to remain and age at home.

Anthony J. Enea, Esq. is the managing member of Enea, Scanlan & Sirignano, LLP with offices in White Plains and Somers, NY. Mr. Enea is chair of the New York State Bar Association's Senior Lawyers Section. He was named Best Lawyers' 2019 Trusts and Estates "Lawyer of the Year" in White Plains and Westchester County's Leading Elder Care Attorney at the Above the Bar Awards.