An Experienced Elder Law Attorney Won't Make This Mistake

As a law firm with our focus on elder law matters, estate planning, probate and trust administration, and related areas of the law, our lawyers participate in many forums to keep up to date with current developments in those areas of the law. One of those forums is a list serve sponsored by ElderCounsel, LLC that gives us access to input from several hundred elder law attorneys around the country.  Through the list serve we have the opportunity to contribute our experiences and learn from the experiences of the other elder law attorneys who participate.

This morning there was a post by an elder law attorney in another state that should be shared with those who find themselves needing Medicaid to help with the high cost of skilled nursing care.  The question raised by this attorney dealt with the use of a Qualified Income Trust ("QIT").  A QIT is a technique allowed by the Medicaid laws of many states that will allow the elderly resident of a skilled nursing facility qualify for Medicaid benefits even though she has too much income to otherwise qualify.  It's a very important tool, with a few rules that must be meticulously followed. 

I will reproduce the post in its entirety (it's short).

Dear Colleagues,

Any thoughts on if there is a remedy for this unfortunate situation caused by a local non-licensed “Medicaid Planner” ?

Background:

We have contacted by the widow of a man who hired  ‘Medicaid Done Right’ to apply for Medicaid.   Medicaid application was denied because QIT was underfunded by $12.49Nursing home is now sending the widow a bill for $7,300.  She is 81 and indigent.  The widow has contacted my firm to see if anything can be done?

7/16/13         Applicant admitted to Nursing Home

8/13/13         Applied for Medicaid 

8/13/13         Applicant over income by $2,642.49

8/14/13         Set up Qualified Income Trust

8/14/13         Funded QIT  - August $500

9/05/13         Funded QIT  - September $500

9/24/13         Applicant Died

12/05/13      Medicaid DENIED –  Reason:  APPLICANT INCOME IS OVER $2,130   (QIT was underfunded by $12.49)

Sincerely,

This elderly gentleman's application for Medicaid benefits was denied because his QIT was underfunded by $12.49, resulting in him having $12.49 too much income to qualify for benefits.  The lost benefit as a result of the "minor" miscalculation by the unlicensed "Medicaid planner" cost the widow $7,300!  

For 2013, if someone has more than $2,130 a month of income, they do not qualify for Medicaid benefits to pay for skilled nursing home care.  However, through the proper drafting and implementation of a Qualified Income Trust, the person who has more than $2,130 can now qualify for the Medicaid benefits to pay for her nursing home cost.

One of the requirements that must be met for the QIT to serve its purpose, is that it must be properly "funded."  The regulations require that all income in excess of the $2,130 per month must be deposited into the QIT.  Funding the QIT with less than the full amount of income in excess of the $2,130 each month will result in a denial of benefits - as happened in the case discussed above.

There are a number of technical requirements that must be followed for the QIT to serve its purpose.  There also are a number of technical issues involved with other planning options that are designed to assist someone in becoming eligible for Medicaid benefits to pay for nursing home care.

Many people seek assistance from "Medicaid Benefits Planners" who are not elder law attorneys and are not licensed by any state agency. All too often, when such "planners" are involved mistakes are made that can result in lost benefits or delays in becoming eligible for benefits.  The case referenced above is illustrative.  As a result of a miscalculation that left the applicant with $12.49 more income than is allowed under the law, the widow ended up with a $7,300 debt for just one month's loss of benefits.  Had he lived longer, the debt would have increased by $7,300 per month for his remaining life, or until he corrected the error and reapplied for Medicaid benefits.

When your loved one's long term care is involved, with costs exceeding $7,000 a month, don't risk the loss of valuable Medicaid benefits by seeking help from unlicensed, unregulated, and mostly inferior "Medicaid planners."  Find an experienced elder law attorney who is trained to work with the complexities of the Medicaid laws and regulations.  The experienced elder law attorney is less likely to make such mistakes; and, if he does,you probably can recover your losses from his malpractice insurance company.  The unlicensed non-lawyer "Medicaid planner" offers no opportunity for recovery, and often will be out of business before you even realize you've suffered financial loss as a result of their improper conduct or inaccurate advice.

 

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