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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 42896
Experience:  Texas lawyer for 30 years in Estate law
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My elder mother is in a home and will need medicaid soon. My

Customer Question

My elder mother is in a home and will need medicaid soon. My non married brother has lived with her for 14 years and is concerned about medicaid taking the home away when she passes to reclaim medicaid costs. What do we have to do to make sure that does not happen. house value of 200k and brother would be on the street if home taken
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: TX
JA: Has anything been filed or reported?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 11 months ago.
Category: Estate Law
Expert:  P. Simmons replied 11 months ago.

Hi, My name is***** am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Expert:  P. Simmons replied 11 months ago.

Can you tell me, is your brother blind or disabled?

Customer: replied 11 months ago.
no but he has lived with her and cared for her for many years
Expert:  P. Simmons replied 11 months ago.

Thank you
I am truly sorry to be the one to bear bad news. Your brother is not going to be able to avoid paying the state back for money expended for mom's care from the value of the home.

The federal law that regulates medicaid benefits REQUIRES that the state perform a 5 year "lookback" for all recipients of the benefit. This requires the state to analyze all transactions within the last 5 years. So if mom were to transfer to your brother today, mom would have to wait 5 years to be eligible for medicaid benefits.

Now...there is an exemption in the medicaid law that allows transfer of home to a disabled or blind child. But if your brother is not disabled or blind this exemption will not apply.

For mom to receive medicaid benefits, she has to understand that the money advanced to her for care will be recouped, by the government, after her death from the value of the home.

There is no exemption that would allow your brother to take the home.

This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that your mom can transfer the home to your brother and still receive medicaid, but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 11 months ago.
I do not think you have the right answer. The texas law allows for non married children caregivers to keep the home. You are based in AZ so that may not be common there. I was looking for the path to verify how he declares his situation. I do not think you are aware of the Texas specific laws and iwll not be able to rate this as acceptable.
Expert:  P. Simmons replied 11 months ago.

It is federal law that controls this (medicaid is a federal benefit). States merely implement the federal rules.

There IS a "caregiver exception"...however it is tied to requirement that the child provide care, for 2 or more years at a level of care that allows the applicant to avoid transfer to a home. Did the child provide this level of care? Your question was not clear on this.

That said, I understand you are not satisfied and will opt out and allow others to assist you

I wish you the best

Expert:  RayAnswers replied 11 months ago.

Ray here, Texas lawyer.

She can do a ladybird deed here, she keeps life estate, the son gets remainder interest.If she applies for medicaid in Texas here she signs statement that she intends to return here if able to her home for her lifetime interest.

This keeps the taxes low here for her lifetime, it passes to him directly by deed at her death , estate recovery has no claim because no probate here it ppassed by deed outside probate.

I can give you a ladybird deed form , you might want to have estate planning lawyer complete it and see if she has other assets that need sheltering.If she has cash here that needs spending down you could rent safety box, have her take out say $148.00 e ery week to 10 days put the cash in the safety box off the grid.This would be cash for "groceries" or eating out , etc.

These are your options here.The ladybird deed does exempt it as a resource.

Expert:  RayAnswers replied 11 months ago.

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

Expert:  RayAnswers replied 11 months ago.

Lady Bird Deed

This Deed is made on this day of _______________, 20__, between the Grantor _________________________ of address
and the Grantee Beneficiary _________________________ of address

For good and valuable consideration paid by the Grantee Beneficiary, the receipt of which is hereby acknowledged, the Grantor does transfer and convey the following described property to the Grantee Beneficiary effective on the Grantor's death:

Property Address:

Legal Description:

The Grantor reserves a life estate for himself/herself during the Grantor's lifetime coupled with an unrestricted power to convey during the Grantor's lifetime, which includes the power to sell, gift, mortgage, lease and otherwise dispose of the property, and to retain the proceeds from the conveyance.

EXECUTED this day of _______________, 20__.

Grantor Name: _________________________

Grantor Signature: _________________________

STATE OF _________________________

COUNTY OF _________________________

On this day, personally appeared before me, _________________________, to me known to be the person(s) described in and who executed the within instrument, and acknowledged that he/she signed the same as his/her voluntary act and deed, for the uses and purposes therein mentioned.

Witness my hand and official seal hereto affixed on this day of _______________, 20__.

Notary's Public Signature: _________________________

My commission expires _______________.

Expert:  RayAnswers replied 11 months ago.

You didn't ask but if she died owning this , Texas sends out a questionnaire and disabled child can claim hardship exception here , if you will go on and do the ladybird deed you avoid all these issues here.

Thanks again.

Expert:  RayAnswers replied 11 months ago.

Reference to doing nothing

Are there times when the state will not ask for money back?

Yes, the state will not ask for money when:

  • There is a spouse who is still alive.
  • There is a child under 21 years of age.
  • There is a child of any age who is blind or permanently and totally disabled under Social Security requirements.
  • The value of the estate is $10,000 or less.
  • The amount of Medicaid costs is $3,000 or less.
  • There is an unmarried adult child who lived full-time in the Medicaid person’s home for at least one year before this person died.
  • The cost of selling the property is more than the property is worth.

Also, the state will not ask for money when this would cause an undue hardship for the heirs.