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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 39552
Experience:  Texas lawyer for 30 years in Estate law
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Can a nursing facility take my mother's home if my sister

Customer Question

Can a nursing facility take my mother's home if my sister has been living with her for the past 15 years and is still living there
Submitted: 5 months ago.
Category: Estate Law
Expert:  RayAnswers replied 5 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

Expert:  RayAnswers replied 5 months ago.

Sister would need to make hardship waiver request here in Ohio when mother deceases.Medicaid here decides whether or not they assert a claim in estate recovery..

Reference

I) Request for undue hardship waiver.

(1) Within thirty calendar days after notice of the estate recovery claim was mailed by the AGO, an undue hardship waiver may be requested (upon such form as may be designated by the ODM director) by an heir or potential heir who would suffer an undue hardship if a waiver is not granted, a person with an interest in assets of the estate, or a representative of such persons. An undue hardship waiver may not be requested by a creditor of the estate, unless such creditor is also a potential heir of the estate.

(2) Within sixty calendar days of receipt of the request for an undue hardship waiver, ODM must notify the applicant whether the waiver request has been approved (in full, in part, or for a limited time) or denied. Failure to meet this sixty day deadline does not result in an automatic decision on the request.

(3) If the waiver request was not approved in full, or if the approval was time-limited, the applicant may, within thirty calendar days, request (on such form as the director designates) that the ODM director, or designee, review the undue hardship waiver decision.

(a) The ODM director, or designee, will review only those portions of the undue hardship waiver request that were denied or time-limited. The director will not deny or limit any portion of the undue hardship waiver request that has already been granted.

(b) The ODM director, or designee, must review the undue hardship waiver request and notify the applicant within sixty calendar days whether (at the director's sole discretion) the director, or designee, has approved (in full, in part, or for a limited time) or denied the request for an undue hardship waiver. Failure to meet this sixty day deadline does not result in an automatic decision on the request.

(J) Within thirty days after notice of the estate recovery claim was mailed by the AGO, a person with an interest in assets of the estate (or a representative of any such person) may (upon such form as may be designated by the ODM director) present a claim showing evidence that assets of the estate are exempt assets under one of the following categories.

http://codes.ohio.gov/oac/5160:1-2-07v1

Expert:  RayAnswers replied 5 months ago.

Federal medicaid law requires participating states to seek recovery from a medicaid recipient's estate for medical assistance consisting of nursing facility services, home and community-based services, and related hospital and prescription drug services. "Estate" is defined as including the real and personal property and other assets of the medicaid recipient which is subject to state probate law. At the option of each state, the "estate" may be defined to be more inclusive, to the extreme of including any real and personal property and other assets in which the medicaid recipient had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

The effect of House Bill 66 is that Ohio joins about eighteen other states in adopting an expanded definition of "estate", and just the second state to adopt the most expansive definition permissible under federal law. Accordingly, whereas previously only the assets of the medicaid recipient passing through probate was subject to recovery by the State, now any asset in which the individual had an interest at the time of death may be recovered by the State. This may include the house, life insurance and annuity benefits, in addition to survivorship accounts and trust assets. And unlike other states, Ohio's statute did not expressly limit the expanded recovery to the future. Therefore, Ohio may attempt to recover resources retroactively.

Fortunately, the federal law provides that no recovery may be made while the individual's spouse, child under 21 or disabled child is alive.

The new law also requires liens be placed on real property of a medicaid recipient who is permanently institutionalized and against the real property of the recipient's spouse. However, no lien may be imposed if the one of the following persons lawfully resides in the home: recipient's spouse, child under 21, disabled child, or sibling who has an equity interest in the home and who resided in the home for at least one year immediately before the date of the recipient's admission to the institution.

There is a hardship provision that gives discretion to the State to waive recovery. However, current statutes only provide for waivers on a case by case basis and only in "compelling circumstances." A hardship waiver may involve either a permanent waiver of recovery efforts, or a temporary deferral or postponement of recovery. Disputes regarding undue hardship must be resolved through the judicial process.

I appreciate the chance to help you tonight.Thanks again.

Expert:  RayAnswers replied 5 months ago.

If there is a probate proceeding, you must notify the Attorney General’s Office within 30 days of your appointment as the estate’s executor. After you have provided notice, the Attorney General will file a claim with your mother’s estate. In cases where there is no probate estate, the Attorney General’s Office sends a letter to the Medicaid recipient's authorized representative.Your sister would then need to file a hardship waiver request.

Expert:  RayAnswers replied 5 months ago.

Generally, this request will only be granted if the estate’s beneficiary was financially dependent on the Medicaid recipient and recovery would deprive the beneficiary of necessary food, clothing, or shelter, or require the beneficiary to receive public assistance.

Expert:  RayAnswers replied 5 months ago.

http://www.hickman-lowder.com/images/stories/pdfs/Estate_Recovery_and_Notification.pdf

I wish you the best here.

If you can leave a positive rating it is much appreciated.

Expert:  RayAnswers replied 5 months ago.

Contact information here so you can ask for hardship when the time comes

http://www.allenohioprobate.com/FORMS/medicare-estate-form.pdf

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