Elder Law Glossary - Law Firm Sarisohn Law Partners LLP Attorneys Commack, New York

Index:

Assisted Living - Assisted living facilities are designed for people needing assistance with Activities of Daily Living (ADLs) but wishing to live as independently as possible for as long as possible. Assisted living bridges the gap between independent living and nursing homes. Residents in assisted living centers are not able to live by themselves but do not require constant care either. Assisted living facilities offer help with meal preparation, eating, bathing, dressing, laundry, housekeeping, and assistance with medications.

Activities of Daily Living - "Activities of Daily Living" or ADL refers to six activities - bathing, dressing, transferring, using the toilet room, eating, and walking - that measure a patient's capacity for self-care. A resident's need for assistance with Activities of Daily Living is assessed upon admission to Assisted Living Facilities and Nursing Homes. It is also a factor in Medicaid eligibility for Home Care and Nursing Homes.

Community Medicaid - Community Medicaid is a government program that provides financial assistance to help seniors needing help with ADLs to live in their own home. Community Medicaid pays for home health attendants, adult day care programs, and other medical expenses. Applicants for Community Medicaid must meet income and resource levels.

Countable Assets -
1. Bank accounts, certificates of deposit, investments
2. The value of a second home or vacant land,
3. The cash value of life insurance which exceeds $1,500,
4. More than one automobile,
5. Some promissory notes and annuities
6. Equity in a primary home that exceeds $750,000 in most cases,
7. Improper asset transfers (gifts) made prior to 2/8/2006,

Deficit Reduction Act - The Deficit Reduction Act of 2005 (DRA) is a law designed to make it more difficult for the middle-class to qualify for certain Medicaid programs. Among other things, the DRA changed Nursing Home Medicaid Applications by increasing the Look-Back period from three to five years, and changed the start of the Penalty Period. The effect of this law made it more difficult for people to give away their assets in order to meet Medicaid poverty levels.

Fair Hearing - A Fair Hearing is a chance for you to try to show that a decision made by the Department of Social Services (DSS) is wrong. At a fair hearing, you have the right to present evidence, call witnesses and have representation by an attorney. After the Fair Hearing, you will receive a written decision, and if you win, DSS must correct its mistake.

Grantor - A grantor or settlor is a person who creates and funds a Trust with his or her assets.

Guardianship - Article 81 of New York's Mental Hygiene Law permits a judge to appoint a guardian to manage the financial and/or personal affairs of a person who is incapacitated. Not all guardians have the same powers. Guardianship orders are tailored so that the guardian is granted only those powers that are specifically necessary to meet the needs of the person who is incapacitated. For example, a person may not be able to manage their money, but may have the ability to make healthcare decisions. In that situation, a court might appoint a guardian with only financial management powers.

Irrevocable Trust - An Irrevocable Trust cannot be changed or cancelled once it is created without the consent of the beneficiary. It is often used to protect assets in Medicaid Planning , because, after five years have passed, assets placed in an Irrevocable Trust are not Countable Resources for Medicaid eligibility. An Irrevocable Trust also avoids Probate for any assets placed in the Trust. It is often referred to as an Irrevocable Living Trust because it holds and controls property during the lifetime of the Grantor.

Life Estate Deed - A Life Estate Deed allows the owner of property (usually a home), to use the property for the rest of his or her life. Upon death, the property will be owned by the person named in the deed (called the Remainderman), without the need for a Will. A Life Estate Deed is often a gift to the Remainderman, if they do not pay money to the owner. If the owner wants to sell the property at a later time, the Remainderman must give his or her permission, and may be entitled to a share of the sales proceeds.

Living Trust - Living trusts are created and funded during the Grantor's lifetime. There are many different types of Living Trusts, and we recommend that you consult with an estate planning or elder law attorney to determine it a Living Trust will be beneficial to you. A Living Trust may allow assets to be passed to heirs without going through the process of Probate. This can save money for people who own land in more than one state, or for people who wish to disinherit certain family members. Sometimes Living Trusts are written to save estate taxes or to protect assets for Medicaid eligibility. Irrevocable Trusts and Revocable Trust are examples of Living Trusts.

Long Term Care - Long Term Care includes medical and non-medical care to people who have a chronic illness or disability. Most long-term care provides assistance with activities of daily living (ADLs) like dressing, bathing, and using the bathroom. Long-term care can be provided at home, in the community, in assisted living or in nursing homes. Long Term Care is very expensive, and many people are purchasing insurance policies to help pay the costs. The only Government program that pays for Long Term Care is Medicaid.

Look-Back Period - When you apply for Nursing Home Medicaid, your caseworker will ask to see all your financial statements for a period of time, known as the Look-Back Period. Beginning in 2009, the Look-Back Period will slowly increase from three years to five years, in 2011. If your case worker sees that you have given away any of your resources (money, investments, real property), your Medicaid may be delayed for several months, based upon the value of the resources that you gave away.

Medicaid - Medicaid is a government funded program for people who cannot afford to pay for medical care. Those people eligible for public assistance or SSI automatically qualify for Medicaid. In New York, Medicaid is also available for senior citizens over sixty-five or who are blind or disabled even if their incomes are too high to qualify for public assistance or SSI. Elderly citizens over sixty-five and blind or disabled people can spend down any excess income on medical costs until they reach the Medicaid income level. Medicaid eligibility also depends on meeting resource levels. Medicaid covers all types of medical care including hospital care, doctor bills, nursing home coverage, home care, adult day care and prescriptions.

Medicare - Medicare is a Health Insurance Program for people age 65 or older, some disabled people under age 65, and people with End-Stage Renal Disease. Medicare has no income or asset eligibility criteria. With coverage for nearly 40 million Americans, Medicare is the nation's largest health insurance program. Medicare coves medical costs such as doctor's bills, hospital bills, and some prescription drug costs. Medicare does not cover Long Term Care, or Nursing Home Costs.

Nursing Home - A Nursing Home or Skilled Nursing Facility (SNF) is a residence for the elderly as well as younger adults who require daily nursing care and have significant deficiencies with at least two activities of daily living. Many people enter a Skilled Nursing Facility in order to receive physical, occupational, and other rehabilitative therapies following an accident or illness.

Penalty Divider - A Medicaid applicant may be disqualified from receiving Medicaid benefits for a period of time if he or she made an improper gift in order to meet the Medicaid Resource Limits. This period of ineligibility is referred to as a "Penalty Period." The applicant cannot receive Medicaid benefits until the Penalty Period is over. The length of the Penalty Period is in proportion to the amount of the gift: larger gifts will create larger Penalty Periods. The Penalty Divider is a government number that is supposed to approximate the average monthly cost of a Nursing Home in the locality of the applicant. The amount of the improper gift is divided by the Penalty Divider, and the result is the number of months of the Penalty Period. The Penalty Divider for Long Island is $10,852. If, for example, a Medicaid Applicant for a Nursing Home had made $43,408 in gifts during the Look-Back Period, and he or she was otherwise eligible for Medicaid, a Penalty Period of four months would be assessed, and the applicant would have to pay for the Nursing Home with his or her own money (try to get the gift returned) for four months.

Penalty Period - Nursing Home Medicaid will only provide assistance to persons who meet several strict medical and financial tests. If a Medicaid applicant gave away any of his or her resources (money, investments, real property) during the Look-Back Period, and there is no permitted exception, the applicant's Medicaid may be delayed for several months, based upon the value of the resources that was given away. See Penalty Divider. The law allows a Medicaid applicant to spend his or her money, but penalizes those who have made substantial gifts of their property.

Probate - Probate is the proceeding in New York Surrogate's Court to establish the validity of a deceased person's Will and to appoint a fiduciary named in that Will to settle the deceased person's estate.

Promissory Note - A Promissory Note is a written agreement in which one party makes a promise to pay a sum of money to the other, under specific terms. Carefully written Promissory Notes can be used in Medicaid eligibility planning along with a loan and a gift of money to protect assets of someone residing in a Nursing Home.

Resource Limit - The Resource Limit is the total Countable Assets a Medicaid applicant may have. For both Community Medicaid and Nursing Home, it is $13,800 for an individual and $20,100 for a couple.

Revocable Trust - A Revocable Trust may be altered or terminated during the Grantor's lifetime. The Grantor can control the assets in the Trust and can take the assets out of the Trust at any time. Assets in the Revocable Trust are subject to Estate Taxation and income from the assets is taxable to the Grantor. A Revocable Trust is effective for avoiding probate proceedings, but it does not protect assets for Medicaid eligibility.

Spend Down - Medicaid eligibility is determined in part by the applicant's level of "countable resources." If an applicant's countable assets exceed the permitted Medicaid level, the applicant may spend down his or her assets until they are depleted so far that the applicant becomes eligible for public sources of payment through Medicaid. If an applicant has monthly income that is above permitted Medicaid levels, he or she may have a monthly spend-down amount in order to assess Medicaid benefits.

Spousal Refusal - New York is one of the few states that permit a Medicaid applicant to transfer all his or her assets to a healthy spouse who will then refuse to support the Medicaid applicant. The Medicaid applicant will receive Medicaid, but the government reserves the right to sue the healthy spouse for the cost of medical services paid on behalf of the Medicaid applicant.