elder law

Elder Law

The special legal problems that come with aging call for an experienced advocate who knows the wide variety of issues that come up for elders and can help make the right arrangement to handle all problems which may be foreseeable.  This often includes preparation of wills, trusts, power-of-attorney documents, designation of health care representative documents, but also advice about various government entitlement programs and what those may provide and entail for seniors.

Nursing home care is expensive

Indiana Family & Social Services Administration (FSSA) reported that the state’s average monthly nursing home cost was $5,733 ($68,796 per year) as of July 1, 2014, and it has increased at an average inflation rate of just under 5% per year for at least the past 20 years. Actual nursing home, assisted living, and home healthcare costs vary by region and the kinds of services that patients require.

Medicare & supplemental insurance fall short

Medicare pays up to the first 100 days in a nursing home. Medicare only covers nursing home care if the patient was transferred to the nursing home after 3 days of inpatient hospital care. Supplemental insurance usually depends on Medicare coverage.

Medicaid pays nursing home costs when residents cannot pay

Medicaid is a state-administered federal healthcare payment system. FSSA manages Indiana’s Medicaid system. Medicaid helps older and disabled Hoosiers pay some of their healthcare expenses, but applicants must satisfy wealth and income requirements to qualify. Most Medicaid applicants must have a gross income of $2,163 per month or less to qualify. Special trust plans can help some high-income applicants qualify.

Resource (wealth) limits

Medicaid pays an unmarried Indiana patient’s nursing home costs if the patient owns “resources” worth less than $2,000. Resources are nonexempt assets like money, some life insurance policies, investments, land, and vehicles. Medicaid exempts some assets from the resource definition like pre-paid funerals, income-producing real estate, and household goods and personal effects.

Special rules for married people

Federal law protects a Medicaid applicant’s spouse (the “Community Spouse”) from impoverishment. The Community Spouse can keep the normal exempt assets, plus all real estate and one car as additional exempt assets.

If the couples’ total resource value is below a certain minimum value ($23,448 in 2014), the spouse can keep all of the resources.

If the couple’s total resource value is more than the minimum and less than double the maximum value ($234,480 in 2014), the Community Spouse can keep 1/2 of the resources.

If the couple’s total resource value is more than double the maximum value, the Community Spouse can only keep the maximum value ($117,240 in 2014).

The couple must either spend excess resources or invest them in exempt assets. The couple will trigger transfer penalties if they give assets away or sell them for less than fair market value.

Transfer (gift) penalties

A transfer penalty is a Medicaid disqualification of an applicant for giving gifts or selling resources for bargain prices that took place within the preceding 5 years (the “Lookback Period”) before the application date. FSSA computes the penalty period by dividing the transfer value by Indiana’s average monthly nursing home cost. The scary thing about a transfer penalty is that it does not begin until the applicant needs nursing home care and has resources below the resource limit – yes, that’s right – sick, broke, and Medicaid disqualified! Smith Law Services can assist clients with minimizing or eliminating transfer (gift) penalties.


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