For residents of nursing homes and other long-term care facilities, lack of sufficient staff has…
** This article has been revised from its original version which was published on January 29, 2020.
Medicaid planning in New York can be presented to the guardianship court either before a guardian has been appointed or after, depending on when the need for a Medicaid plan arises.
Medicaid Planning at the Onset of the Guardianship Proceeding
If the need for a Medicaid plan is apparent at the onset of the New York guardianship proceeding, the petitioner can request authority to do Medicaid planning and asset protection to prepare for Medicaid eligibility. The petition should include the proposed plan, why it’s necessary to help the incapacitated person, and indicate its consistency with their known wishes.
The petition for guardian of personal needs and property management should also clearly establish the plan’s validity, explaining how the alleged incapacitated person will never be left without assets or Medicaid benefits to meet their medical needs. The petition should also specifically request the necessary authority to implement the Medicaid plan and allow the guardian to gather the information and documentation for Medicaid eligibility.
If possible and when appropriate, the petitioner’s attorney should discuss any issues with the Medicaid plan that might impact the alleged incapacitated person’s overall estate planning goals to obtain the consent of interested parties before submitting the petition.
Medicaid Planning After the Guardian is Appointed
If the need for a Medicaid plan doesn’t arise until after the guardian is appointed, the guardian for property management must petition the court to include the additional powers needed to implement Medicaid planning in New York.
In some cases, it may be necessary for the guardian to get the court’s approval to retain an experienced elder law attorney or Medicaid planning attorney to establish a Medicaid plan. The elder law attorney could prepare a memorandum for the court explaining the Medicaid plan and include it as an exhibit to the petition. Likewise, the elder law attorney or Medicaid planning attorney should be available to appear before the court to testify or explain the benefits of the Medicaid plan and provide a recommendation to the court.
Regardless of the substance of the Medicaid plan or how it’s presented to the court, it’s clear that Medicaid planning has become more innovative than simple asset transfers and requires the guidance of an experienced elder law attorney who can help avoid pitfalls and mistakes along the way. It’s the responsibility of the guardian, with help from the elder law attorney, to present a sound basis for the Medicaid plan and educate the court on its necessity and validity.
Russo Law Group, P.C., has experienced elder law and Medicaid planning attorneys in New York to create a Medicaid plan for asset protection when your loved one needs guardianship. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may offer you and your family peace of mind. Contact us today!