Parents who are looking to protect their special needs children often begin by considering how decisions will be made. Capacity is a continuum, so every special needs child and every family is unique. Essentially there are three models where the individual needs decision-making support. Substitute decision-making, supported decision-making, and court supervised decision-making (guardianships and/or conservatorship). […]
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News Sources Year-end charitable tax planning tips When Seniors are Targeted in Schemes 14 Rollover Tax Facts to Know Rosetta Stone Offers Lifetime Deal to Learn Unlimited Languages (?Limited time?) November is National Family Caregivers Month (Autism Society) National Family Caregiver Month (VA) EZ Elder Law Trademark Application to be published in Official Gazette November […]
The form below was developed by the Georgia Department of Community Health and is based on Section 2342-11 of the Georgia ABD Medicaid Manual:
What are people talking about when they say you have to “spend down” to become eligible for Medicaid? Well, it can describe two different things. Most of the time elder law attorneys are referring to to resource spend-down where the applicant is trying to get below the resource eligibiity threshold. But it can also refer […]
On Friday, November 12, 2021, at 1pm eastern, the Alzheimer’s Foundation of America will host a webinar titled “New Rules for End of Life Care.” It features guest speaker Barbara Karnes, RN, author of Gone from My Sight: The Dying Experience, and creator of New Rules for End of Life Care: A Guide on the […]
EZ Elder Law is intended to provide helpful/useful information for (1) older adults, (2) individuals with special needs, (3) caregivers and (4) the professionals who work with them. With that in mind, if you are a Certified Elder Law Attorney, NAELA Fellow, member of NAELA’s Council of Advanced Practitioners, ACTEC Fellow, Super Lawyer, AV Rated […]
When someone visits an elder law attorney, he or she is often in the middle of a crisis. Sometimes the crisis is real. Other times it is perceived due to insufficient information (or information overload). Yes, elder law attorneys do mundane, run of the mill work, but more often than not it’s a crisis that […]
A new video series by the Public Broadcasting System entitled “Future of Work,” explores how increased longevity and technological innovation are transforming the workforce. The three-part broadcast series premiered on September 1, 2021. A six-part digital series is also available exploring the lives of six Americans. View the series here: Future of Work
The spreadsheet included below can be used to help total your countable and exempt resources when evaluating your eligibility for public benefits like Medicaid.
(Last updated 8/8/2023) The central and initial issue in every guardianship and conservatorship case is whether the proposed ward has decision-making capacity. In other words, can the proposed ward make and communicate significant decisions about himself (or herself) and can the proposed ward make and communicate significant decisions about his (or her) finances? For purposes […]
Information regarding health care advance directives is here. The Georgia statutory advance directive for health care is below:
Our page discussing powers or attorney, what they are, (what they are not), and how they are used is here. The Statutory form is here (fillable version below):
As Psychiatric Advance Directive allows an individual to designate who would make mental health decisions for the patient in the event the patient cannot speak for himself or herself and mental health treatment is required. Currently, 25 States have statutes recognizing the validity of psychiatric advance directives, but other States such as Georgia, are considering […]
In Richards v. Georgia Department of Community Health, 278 Ga. 757 (2004), a class of plaintiffs sued DCH contending that O.C.G.A. § 49-4-149 was illegal as applied. The Department’s position was that its claim for reimbursement applied to all funds received by a plaintiff through litigation against responsible third-parties. The plaintiffs argued that DCH’s claim […]
In CL SNF, LLC v. Fountain (Ga. Supreme Court September 21, 2021), the Georgia Supreme Court reversed CL SNF, LLC v. Fountain, 355 Ga. App. 176, 183 (1) (843 SE2d 605) (2020), finding that the Georgia Guardianship Code grants a guardian authority to enter into a binding pre-dispute arbitration agreement. The Clinch County Probate Court […]
News Sources: Covid-induced life changes leave millions of Americans worried about money IRS Continues Focus on Cryptoassets Georgia Attorney General Recognizes National Cyber Security Awareness Month Georgia Attorney General Supports Congressional Hearings Addressing Youth Social Media Use Dental coverage for Medicare recipients divides parties Federal auto-IRA program would be a big step forward in expanding […]
Robert C. Port is a business litigation attorney practicing with Gaslowitz Frankel, LLC. He is author of Georgia Business Litigation and has a blog covering diverse subjects such as “Why You Shouldn’t Wait Until the Divorce is Finalized to Update Your Estate Plan,” “Investing 101: Things to Consider and Questions to Ask,” and “How Long […]
Deeming Terminates After Eligibility Is Established. Four years later, the Duprees were back in Court. At the annual review on February 29, 2012, DFCS denied eligibility due to a failure to submit documentation. The documents were then submitted and eligibility was denied with DFCS alleging petitioner was over resourced. Petitioner had not acquired any new […]
Which Home is the Homeplace? Pernie Dupree entered a nursing home on September 11, 2009. Prior to her admission, she had lived with her husband at 1 Bragg Circle since 1949. The Bragg Circle property was valued at $45,411. After hs wife entered the nursing home, due to his declining health Mr. Dupree moved into his […]
Pooled Trust Subaccount Established for Individual Over 65yo. An 83 year old deposited $12,320 into a pooled trust in August 2008. In November 2008, he applied for Medicaid. His application was denied. The parties stipulated the trust complied with 42 USC 1396p(d)(4)(C), but the Department took the position a transfer penalty should be applied. The […]
Direct Transfer to Disabled Child; Previously Unknown Resource. Applications for Medicaid were filed on November 24, 2008 and January 8, 2009. The first application was denied for failure to provide documentation. The second was approved on April 16, 2009 with assessment of a penalty through 2009. The transfer was directly to a disabled child rather […]
Annuity; Transfer Penalty for Failing to Name State as Beneficiary. Petitioner, a 95 year old nursing home resident, applied for Medicaid on December 15, 2008. DFCS denied eligibility and imposed a transfer of resources penalty because she had purchased an annuity without naming the State of Georgia as a beneficiary. The annuity was irrevocable and […]
Single Premium Life Insurance Contract; Penalty Reversed. On November 5, 2008, Petitioner filed an application to purchase a Single Premium Pure Endowment Life Insurance Contract. She paid $89,500 for the policy which, in five years, would pay her children $91,327. The contract stated there was no cash surrender value and that no benefits would be […]
No Retroactive Application of Policy Changes Permitted; Payments for Renovations to Accommodate Petitioner Permitted; Payments Consistent with Prior Accepted Obligation Permitted. Petitioner was hospitalized with a stroke in 2008, after which she went to live with one of her sons until she was re-hospitalized in November 2008. Thereafter, she remained in a nursing home. Petitioner […]
Personal Services Contract rejected. Petitioner was admitted to a nursing home in October 2008, where she continued to stay. At the time, she had $36,332 in resources. Petitioner entered into a contract with Ms. Hailey to provide personal care services at the nursing home for life for $23,000. Her life expectancy was 10 more years. […]
VA Improved Pension Not Income. Petitioner applied for Medicaid on November 4, 2008. Petitioner was the surviving spouse of a veteran eligible for VA Improved Pension. At the time, the income cap was $2,022 and, if the Improved Pension was included in Petitioner’s income, then her gross monthly income exceeded the income cap. Of Petitioner’s $1,056 […]
Direct Transfer to disabled child allowed from date ALS was diagnosed. Petitioner made transfers directly to a disabled child with ALS. However some transfers were made prior to the determination of disability and others were made after the disability determination. DFCS attempted to penalize all transfers since they were directly to the disabled child rather […]
Increase CSRA in Superior Court, followed by Application and Fair Hearing. After admission to a nursing home, but prior to application for Medicaid, the Superior Court in Glascock County issued an order setting aside all of Petitioner’s marital resources for the Community Spouse’s benefit for the purpose of generating sufficient income to reach the MMMNA. […]
Transfer penalty cannot be imposed where transfer was exclusively for purpose other than to qualify for Medicaid. Petitioner was admitted to a nursing home with dementia and her doctor states she cannot make legal decisions. Petitioner owned her home jointly with her daughter following the death of Petitioner’s husband. The daughter then conveyed the home […]
The Limit is the Limit, Part 3. Petitioner was originally admitted to Ridgewood Manor, a nursing home in Dalton, and later transferred in July 2007 to Shepherd Hills in Lafayette. Meanwhile, in May of 2007, her Community Spouse was admitted to a hospital and remained either hospitalized or in a nursing home until his death […]
Use of Burial Funds for Care Results in them Being Treated as Income. In a one page decision, the ALJ affirmed an increase in Petitioner’s cost-share for December 2008 where Petitioner used funds set aside for burial for personal care. The ALJ noted this decision did not impact eligibility for any month other than December […]
Penalty Affirmed After Life Estate Conveyed; Hardship Waiver Unavailable Because No Legal Action was Taken to Recover Property. Petitioner, a divorced individual, acquired a life estate in business property with his ex-wife owning the remainder interest. He entered a nursing home in March 2008 and his Medicaid application was denied after the caseworker valued his […]
Transfer Penalty Reversed Where Care Services Were Provided Under Agreement. Petitioner was discharged from a nursing home to home in 2004, where she remained until she returned in 2008. At the time of discharge she agreed to transfer her property valued at $262,970 on the 2006 assessment (when the transfer occurred) if her son provided […]
Cash Value of Life Insurance Cannot Be Designated as Burial Fund. Denial of eligibility was affirmed where Petitioner had a life insurance policy with a face value of $25,000 and a cash value of $2,354 because cash value cannot be designated as a burial fund. Note: compare old Section 2312 with current Section 2312. OSAH-Unknown-Teate-3-2008.pdf (March 13, 2008).
When Determining Value, Equity Value is CMV Minus mortgages and Liens. Petition created a revocable living trust in 2006. In July 2006, her granddaughter charged in excess of $30,000 on Petitioner’s credit cards before the granddaughter was hospitalized. Thereafter, Petitioner fell behind on the mortgage and her home was in danger of foreclosure. Petitioner and […]
No QIT, No Medicaid if Income Exceeds Cap, Part 2. Petitioner entered a nursing home in June 2008 and filed an application for Medicaid. DFCS did not receive or act on the application until July 22, 2008. As a result of inaction, Petitioner did not know that a QIT was needed because income exceeded the […]
Life Insurance Snafu. Petitioner and Respondent stipulated facts in this case. Petitioner applied for nursing home Medicaid in March 2008. DFCS denied the application because Petitioner had three life insurance policies with a cumulative face value of $13,831. Since the face value exceeded $10,000, the cash value of the policies was counted toward Petitioner’s $2,000 […]
No Penalty For Transfer to Disabled Child. DFCS imposed a transfer of resources penalty where Petitioner transferred cash assets to a disabled daughter. DFCS’s reasoning was that cash assets were transferred to the disabled child outright as opposed to transferring them to a trust for her sole benefit. Citing 42 U.S.C. § 1396p(c)(2)(B)(iii) and Section 2342 of the […]
No QIT means No Medicaid If Income Exceeds Cap. Petitioner entered the nursing home in July 2007 and applied for Medicaid in August 2007. No one told Petitioner a qualified income trust was needed. A denial was sent in October and Petitioner reapplied in November 2007, establishing the QIT by December 17, 2007. Eligibility was denied for […]
Determining Which Property is the Exempt Homeplace; Whether Jointly Owned Second Property was Exempt. Petitioner lived at her residence in DeKalb County from 1960 until 2002 when she moved to her daughter’s home on Klondike Road in DeKalb County. From there, Petitioner went to an assisted living facility and then, in December 2006, a nursing […]
Penalty Reversed Where Home was Given to Caregiver Child. In 2002, Petitioner’s daughter moved into Petitioner’s home to provide care. In 2003, Petitioner was bedridden after back surgery; the daughter continued providing care on a full-time basis and also paid some of Petitioner’s expenses. On December 25, 2004, Petitioner gave her home to her daughter, […]
No Penalty Where Transfer Reimbursed Third Party for Paying Applicant’s Expenses. Petitioner was admitted to a nursing home on May 7, 2008 and remained there until her death on July 24, 2008. Petitioner filed an application for Medicaid on July 3, 2008, seeking retroactive coverage. The application was denied after DFCS discovered a $22,668.56 transfer […]
The Limit is the Limit, Part 2. Petitioner entered the nursing home on April 17, 2007 and applied for Medicaid on February 22, 2008. Petitioner sough retroactive coverage for November 2007 through January 2008. Unfortunately, Petition was over resourced. After designating stock as a burial resource, she still had $5,569.73 on November 1st, $4,077.13 on […]
Calculation of Cost-Share. As of November 1, 2008, Petitioner’s gross monthly income was $2,385.54. DGCS calculated the cost-share as $2,189 after allowing deductions of $9.25 for federal taxes, $136.72 for health insurance premiums and $50 for Petitioner’s personal needs allowance. The decision does not indicate what additional deduction Petitioner sought, but the DFCS calculation was […]
Corpus of Irrevocable Trust was Countable Resource. Two trusts Petitioner created in 2000 held a cumulative balance of approximately $64,000. Petitioner was settlor and a co-trustee of each trust. On April 21, 2008, Petitioner filed an application for nursing home Medicaid. DFCS determined that the trusts were available resources causing Petition to be ineligible for […]
Cost-share deduction for health insurance premiums. The ALJ stated the issue as whether a nursing home resident is entitled to a deduction from her patient liability for Medicaid for Health insurance premiums paid by her spouse who resides in the community. DFCS disallowed IME coverage for health insurance premiums paid y the Community Spouse, taking […]
The Limit is the Limit. An 84 year old applicant was denied Medicaid for the months of December 2007 through February 2008. She had sold her home in August and after paying debt, used the remaining $18,686 in equity paying for nursing home care until she ran out of funds in December 2007. Her son […]
Where application was lost, eligibility retroactive eligibility related back three months from date of original application. After receiving a personal injury settlement in May 2007, Petitioner was ineligible for Medicaid until she spent down. She spent down before July 1, 2007, reapplying for Medicaid by hand delivery on October 30, 2007. Petitioner did not receive […]
DFCS directed to determine eligibility where application was pending for over one year. Petitioner filed an application for Medicaid on May 22, 2007. On June 18, 2007, a verification package was given to Petitioner’s daughter. On July 1, 2007, the application was denied for failure to provide verification. On July 25, 2007, Petitioner requested a […]
Sole Benefit Trust rejected and transfer penalty imposed. An 86 year old applicant established an irrevocable trust for the benefit of his 64 year old daughter. However, the trust was not submitted to DCH Legal for approval and Petitioner submitted no evidence that the trust comported with Section 2346 relating to special needs trusts. Further, the […]
