Protecting the Family Home for Children and Siblings When you are Already in a Nursing Home

September 2, 2014

This edition of the Koldin Report E-Newsletter continues a series reviewing options for how you can protect your family home after you are already ill and even when you are already in a Nursing Home. In the previous issues, we reviewed the advantages and disadvantages of (1) transferring the family home to children while reserving a life estate, or (2) transferring the family home to an Irrevocable Trust. We also reviewed the rules for protecting the family home for a single person who needs Medicaid covered home care and the use of the "intent to return home" statement for a single person who has entered a Nursing Home. Finally, we reviewed protecting the family home when there is a Community Spouse. All past issues of our E-newsletters are saved on our website can be found by clicking here. This newsletter will review when the family home can be protected and transferred to the Medicaid applicant's children or siblings.

Child Who is Blind, Disabled or Under Age 21 Under the Medicaid law, if your child is legally blind, disabled, or under age 21, the family home can be transferred to your child without any Medicaid transfer penalty period of ineligibility. If your child is also receiving Medicaid or other government benefits, he/she may need to transfer the home to a Supplemental Needs Trust in order to maintain eligibility. Your child may also need to review his/her estate planning options to protect the home for other family members. Child Who is Serving as Your Primary Care Giver Under the Medicaid law, your home can be transferred to your child if he/she was residing in your family home, using it as his/her primary residence for a period of at least 2 years immediately before the date you became institutionalized, and provided care to you which permitted you to reside at home, rather than in a nursing home. The Medicaid Applicant has the burden to prove to the Medicaid Agency that (1) the child moved into the family home as his/her permanent residence for the past two years and (2) but for the child's care, the parent would have had to enter a nursing home during this two year period.

Sibling Who has an Equity Interest in the Home Under the Medicaid law, your home can be transferred to your sibling if he/she has an equity interest in the home, and has been residing in the home and using it as his/her primary residence for a period of at least one year immediately before the date you became institutionalized. The Medicaid Agency issued an Administrative Directive in 1989 outlining examples of what would be considered acceptable documentation of an equity interest: "Equity interest must be documented by submission of: cancelled checks or money orders for mortgage payments; a deed reflecting ownership; or other documents verifying expenses for capital improvements. Examples of expenses which would satisfy the requirement of equity interest, assuming there was no information to indicate otherwise, include: structural renovations. (widening of doorways, installation of ramps, etc.) other than cosmetic (painting, landscaping, kitchen/bath remodeling, etc.)" As can be seen by the above examples and the previous Koldin e-newsletters, there are many exceptions to the Medicaid transfer penalty rules. These newsletters reviewed how the family home can sometimes be protected for family members.

At the Koldin Law Center, P.C. with offices in Syracuse , New York, we have over 40 years of experience helping individuals deal with immediate crisis asset preservation options even when you are already in a Nursing Home. Our attorneys are available to discuss your legal rights including your options to protect your family home.