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KJL LAW, Lawyer
Category: Legal
Satisfied Customers: 1617
Experience:  Attorney at law Office of KJLLAW
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I am having to put my husband in a memory care unit. We

Customer Question

I am having to put my husband in a memory care unit. We don't own anything. But we do have a small IRA. He is going in on long term care ans self pay. Am I doing it the right way?
JA: What state are you in? It matters because laws vary by location.
Customer: Texas
JA: Has anything been filed or reported?
Customer: I have dual power of attorney on him.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 2 months ago.
Category: Legal
Expert:  KJL LAW replied 2 months ago.

good morning. I am a legal expert who will assist you today with your question. What are your combined monthly income? How much is in the IRA?

Customer: replied 2 months ago.
2384.00 his SS and mine is 984.00 we have a dividend of 1500.00 monthly from IRA. We have 440,000.00 in IRA total
Customer: replied 2 months ago.
My cell phone I'd dead.
Customer: replied 2 months ago.
I have a house phone.(###) ###-####
Expert:  KJL LAW replied 2 months ago.

I can answer online without a phone call. I cannot call at this time.

Customer: replied 2 months ago.
Please answer online
Customer: replied 2 months ago.
I am waiting for an online answer.
Expert:  KJL LAW replied 2 months ago.

Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

At this point you your assets will likely count and make him ineligible for Medicaid, until the assets at spent down. Under Texas Medicaid rules applicants can have only a small amount of assets in order to be eligible to receive benefits ($2,000). The Social security, and the dividend count as assets for Medicaid.

Certain assets -- i.e., a house, car, and burial plot -- are exempt from eligibility determinations. Whether your IRA counts as an exempt asset depends on whether it is in "payout status" or not.

The rule is that if the IRA is not in payout status, the IRA is a non-exempt asset, which means the total amount in the IRA will probably be counted as an asset, affecting his Medicaid eligibility. In order to qualify for Medicaid, you will need to cash out your IRA and spend down the assets. Alternatively, you could transfer the money to your spouse or someone else, although there will likely be an income tax penalty for doing this.

The rules for a 401(k) are similar to an IRA. If the 401(k) is not in payout status, Medicaid may count as an asset any funds you are eligible to withdraw from the 401(k)--even if you have to pay a tax penalty to withdraw the funds.

Medicaid Spend Down is what you must do when you have too many resources. In other words, you have too much money and you have to “spend down” assets before you will be eligible for Medicaid coverage. Those excess assets are called the “spenddown” amount. You have a good amount of countable assets that are subject to the 5 year look back period. IF you anticipate several years of care for your husband, you should consult a local estate planning attorney who may be able to help you establish a trust to help wit the spend down, and retain the maximum mount of money for you in the future.

I hope this clarifies.

It was a pleasure assisting you today, and I would appreciate if you would rate my service, so I will receive credit and payment for my work. After you rate the question you can ask follow up questions, and you will not be charged any additional money for the follow-up questions.