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  • « Now you can follow @StephenLBloom in the Twitterverse! | Home | Spiritual Identity Theft: Is Your Lawyer Afraid to be a Christian? »

    The Medicaid-Planning Shell Game (full chapter from Believer’s Guide to Legal Issues)

    By Stephen Bloom | October 14, 2009

    (Copyright 2008, 2009, Stephen Bloom and Living Ink Books)

    Chapter 7 The Medicaid-Planning Shell Game

    If anyone does not provide for his relatives, and especially for his immediate family, he has denied the faith and is worse than an unbeliever. —1 Timothy 5:8

    Life Lessons—Dan and Dad

    “I hate this traffic!” Dan shouted in exasperation, pounding his hand on the steering wheel of his new luxury car. His monologue of outrage continued in his thoughts as he drove on. I’m spending more time driving back and forth from this darn nursing home than I actually get to spend there visiting with Dad, and everything else seems to be falling apart . . . Everyone is stressed out at home, things are dropping through the cracks, I don’t even know what the kids are doing in the evenings . . . and that new place we built up at the lake is just gathering cobwebs, because I’m getting so far behind with work and stuff I need to get done at home . . .

    It seems like I’m spending half my days on the phone with nursing home administrators and intake social workers, trying to get Dad into a facility closer to us, but all I ever hear about are waiting lists and excuses . . . Boy, when we did all that nursing home planning with Dad and my attorney a few years back, I never expected things to turn out like this . . .

    I had no idea nursing homes might not want to take new Medicaid patients when they had plenty of other private-pay patients lining up for their rooms . . . So, sure, now that he needs skilled nursing care, Dad is getting the Medicaid coverage just like we planned for, and, hey, I was able to buy this car and build the cottage on the lake with the money Dad gifted to us as part of the Medicaid qualification strategy, but who ever dreamed I’d spend a year commuting two hours every day through heavy traffic to see Dad? . . . And who ever dreamed Dad would be so unhappy? . . . God, he hates that place, he hates the food, the staff, the doctors . . . the air is stuffy, there’s nothing but a brick wall to look at outside his window, and his roommate groans and cries all through the night . . .

    Man, I wish we could afford somehow to put him in a private room, but I’d have to sell the place on the lake to do that, and we’ve barely even used it yet. And now Dad is starting to blame me, asking me why I did this to him, why I made him go to see that ‘shyster’ lawyer of mine . . . I don’t know how much longer I can keep going down there and listening to his complaints and all the guilt he’s trying to lay on me . . .

    Yes, tonight’s gonna have to be the night I break the news to him . . . I just can’t keep coming down to see him every day, even though I promised Mom I would . . . I know she would understand if she were still here. Two or maybe three times a week would be enough . . . that’s a lot more visits than some of those people in there get. Okay, great, I’m finally here—now to find a parking spot—someplace where I won’t get mugged and my car won’t get broken into again . . . I hate this neighborhood, I really do . . . I don’t know who would ever choose to come here . . .

    Life Lessons - Meg and Mom

    Meg’s eyes were filling with tears as she walked slowly out from the comfortable reception lobby into the clear spring sunshine. She had intended to get into her car and drive home, but the sight of a peaceful wooden bench surrounded by daffodils in a quiet little spot near the edge of a pond, just beyond the freshly paved and painted parking lot, drew her attention. It had been an overwhelming morning, and her heart was heavy and light all at once. And, more so than anything else, she was suddenly burning with a desire to pray, a desire to enter into a time of deep intimacy with God.

    She stepped quietly down a neatly raked woodchip walking path, the fresh scent of newly mown grass lifting lightly on the breeze from the soft green lawns through which the path gently meandered. Reaching the bench, she paused to read the brass lettering on a small plaque “Donated in Christ’s name, with appreciation for all your love and care for our dad—Anonymous.” As she sat, the tears that had been welling in her eyes now released in a torrent, and she just let them flow as she closed her eyes and began to pray.

    “Dear God, dear Jesus, I just don’t know how to thank you enough . . . for your love, for your provision, for your care for me and my Mom through this difficult time . . . God, I thank you for the compassion and kindness already being shown Mom on this very first day here at this Christian nursing care center . . . Lord, I know Mom will probably spend her very last months and weeks and days here . . . we don’t know how long she has, but you do, and that’s okay with me and with her . . . we’re at peace and Mom is so looking forward to that moment when she finally meets you face-to-face . . .

    “Lord, I want to thank you for all the help, for sending all the people to us who made it possible for Mom to find a spot at this center . . . God, it’s so perfect, it’s more than we deserve . . . just five minutes from my house, the best staff in the area, the best doctors, Lord, even the food is the best . . . and the Christlike attitude of everyone we meet . . .

    “God, I know you provide for even the sparrow in the field, but I want to especially thank you for taking care of the costs of all this for Mom . . . I know it sounds trivial, but I thank you for guiding my Dad to buy that long-term care policy for Mom and him before he got sick and passed away three years ago . . . It meant so much to him to know Mom would have the very best care if she ever needed it, and it means so much to me now that she does. Lord, I’ve heard of so many people who’ve really struggled even to find a room in a nursing facility anywhere in our town, getting put on waiting lists and moving around from one place to another . . . Yet, Lord, you blessed us by opening the room here to Mom on the very day she needed it. I don’t know what to say or how to say it, but thank you, God, thank you . . .

    “I know it won’t be easy and I know Mom and I still have many challenges ahead, but I have never before felt surrounded by your peace and presence the way I do right now, Father. So again, let me just thank you, and gratefully and humbly, in the name of your Son, Jesus Christ, ask for your continued mercy and blessings for my Mom . . . Amen.”

    As she finished praying, Meg remained silent, simply experiencing the Father’s loving embrace. The tears finally stopped and she gradually became aware once again of the springtime sounds around her—birds singing in a high tree, some ducks fussing along the far shoreline of the pond, and the distant sound of someone’s lawn mower. Maybe, she thought, it was even her own teenage son mowing their grass just a few blocks away.

    Biblical Insights

    Honor your father and your mother, so that you may live long in the land the LORD your God is giving you.—Exodus 20:12

    You shall not steal.—Exodus 20:15

    Honor your father and your mother, as the LORD your God has commanded you.—Deuteronomy 5:16

    Rise in the presence of the aged, show respect for the elderly and revere your God. I am the LORD.—Leviticus 19:32

    Do not cast me away when I am old; do not forsake me when my strength is gone.—Psalm 71:9

    Practical Counsel

    A blessing of all the medical advances we enjoy is that many of us are living longer lives. But one consequence of these longer lives is that more of us will likely require skilled assistance with our daily activities and health care needs at some point, services often provided in the setting of a long-term care facility. And the cost of such care, as many of us are aware, can be astronomical, very quickly dissipating the modest life savings of all but the wealthiest among us.

    Medicaid (sometimes called Medical Assistance) is a federally conceived government welfare program implemented by each state for the purpose of providing access to health care, including skilled nursing care, to people who can’t otherwise afford it. (To avoid possible confusion, please note Medicaid is a totally different program from Medicare, which is a federal medical insurance program designed to assist the elderly from all walks of life.) In recent years, an entire cottage industry of lawyers and other “elder care planners” or “Medicaid planners” has sprung up, for the purpose of advising older folks (often quite wealthy older folks) on how to strategically arrange their affairs so as to qualify as “indigent” persons eligible for the benefits of the Medicaid program.

    Without regard to life expectancy, material wealth, or available government programs, it seems abundantly clear from the Bible and Christian tradition that God wants us to honor our parents and our elders. It is one of our great privileges and historic responsibilities to care for those older than us, to look out for their best interests as their minds and bodies grow weak. But many secular attorneys and planning professionals (as well as some Christians) seem to embrace a radically different view, essentially asserting we are no longer responsible for taking care of our elderly parents, because “the government” will!

    This attitude is rooted in concepts of legal liability, rather than of moral obligation. A mentality of entitlement is promoted. Seductive arguments are raised that, since we all pay taxes, there is nothing wrong with doing whatever it takes to qualify our parents for medical assistance from the government. We’re simply taking back a piece of what we’ve already paid in. And we’re merely protecting our assets, like any sensible person would (or even like any good steward would).

    And, after all, the medical assistance planners argue, isn’t it better the children enjoy the accumulated wealth of the parents, rather than the parents spending it on nursing home care? Any expectations that the children should bear the burden of caring for elderly relatives are dismissed as quaint, old-fashioned notions from a simpler day, when people actually cared for their own loved ones.

    As a Christian, I am forced to conclude that intentionally rearranging our parents’ assets to impoverish them, so they can qualify for a government welfare program designed for the poorest among us, and so other family members can freely enjoy those assets, doesn’t honor our parents. In fact, I would suggest that it actually disgraces them. Likewise, purposefully hiding or failing to disclose assets in order to qualify a parent for Medicaid is deceptive and a form of theft. We need to guard our hearts and remind ourselves of the warnings Jesus gives us against valuing money and material things over the true treasure of loving and serving him.

    All too often, in my experience, adult children are the ones pressuring their elderly parents to get involved in aggressive Medicaid planning, sometimes even to the extent they are actually the ones bringing their elderly parents to the lawyer’s office to start the process. And the children generally have one goal in mind: Save “my” inheritance! Different people come around to the issue in different ways, but that’s the bottom line question, “What can we do to ‘protect’ mom or dad’s assets, so the money doesn’t get spent on nursing home costs, so I get ‘my’ inheritance?”

    And while some would argue that it’s just good stewardship, in many cases it really has nothing to do with stewardship and everything to do with greed. After all, whose money is it we’re talking about here? Mom and Dad’s money! And why have Mom and Dad been saving their money all these years? In most cases, once I talk to Mom and Dad privately, I learn that their primary concern is to make sure they can take care of themselves, so they won’t be a burden to their children or anyone else (including the government!). They are embarrassed about even having come to the office to discuss Medicaid planning, but have done so, reluctantly, under intense pressure from their children (or frequently one particular child). And the last thing Mom and Dad want is to end up on any type of welfare program. Mom and Dad are often deeply uncomfortable about implementing a Medicaid qualification strategy, while the children are often extremely eager for them to start it as soon as possible. Because when Mom or Dad starts to “plan” for the nursing home, most frequently that “planning” really means Mom or Dad must start giving away most of their hard-earned savings to the children now.

    Of course, in planning for Medicaid eligibility, there are many complexities, loopholes, and “look-back periods,” but when you move beyond all the fancy jargon and bells and whistles, most nursing home planning in the secular legal community comes down to advising Mom or Dad how to give away assets as rapidly as they can, so they can sooner satisfy the Medicaid program’s tests for impoverishment. Remember, Medicaid is a nice, friendly-sounding name for a government welfare program originally intended for the poor and indigent elderly who can’t afford medical care.

    Sadly, the Medicaid welfare program is now being used instead by middle- and higher-income people it was never intended to serve, people who have purposely transferred the bulk of their assets to their children just so they could qualify for Medicaid. So while Mom and Dad go on the public dole, the kids can build a bigger house or go on vacation or whatever. And we all end up paying for it through higher taxes. Putting Mom or Dad on welfare while the kids spend their money may be perfectly legal, but to me it sure looks like a violation of God’s commandment to honor your father and your mother.

    So, is it wrong to take steps to plan for nursing home care, to try to save money? No, certainly it’s wise to plan for the potential expenses of nursing home care, and there are some planning tools that make good moral and financial sense. For example, a high-quality long-term care insurance policy can be an excellent part of good, sound planning, as can investing in home improvements that make home care a viable option for a longer period. And certainly there is nothing morally wrong or inappropriate about a person of limited economic means who genuinely meets the criteria of the Medicaid program taking full advantage of it. But when planning for nursing home care consists of convincing Mom and Dad to transfer most of their assets to their kids, well, then I think it is wrong.

    The Bible teaches we are to provide for our own, that we are to honor our fathers and mothers. The world teaches that the smart thing to do is let our fathers and mothers go on government welfare. There is a clear choice to make. It’s not always easy being a Christian. Sometimes the things we need to do to honor our faith don’t make sense from the world’s perspective. But if we can change our focus from the world’s perspective to God’s perspective, I trust that God will honor our decisions to honor him.

    Topics: New Book |

    7 Responses to “The Medicaid-Planning Shell Game (full chapter from Believer’s Guide to Legal Issues)”

    1. sean Says:
      October 18th, 2009 at 3:23 pm

      Stephen Barth from Hospitalitylawyer.com is hosting his annual hospitality law conference February 3-5. From alcohol and food liability to labor and employment, the latest trends and issues in hospitality law are up for exploration at the 2010 Hospitality Law Conference, February 3-5, 2010. Follow the link for more information http://www.hospitalitylawyer.com/index.php?id=35.

    2. Bob S. Says:
      December 14th, 2009 at 8:59 am

      In my limited experience it is not always the children who are pushing for this transfer of funds, but the elderly parent may be interested in saving the home or other assets for the family. I am not saying that this makes it acceptable, but it is not always the children who lead the way on this.

    3. Stephen Bloom Says:
      December 14th, 2009 at 11:48 am

      Good point Bob, and thanks for bringing it up. Certainly in many cases the parents are, in fact, driving the process.

    4. Crystal C Says:
      December 27th, 2009 at 9:05 pm

      So glad you wrote this article. I look forward to reading this book! I recently took a CLE on Special Needs Trusts because I’d really like to change my practice to help those with special needs, but I keep running up against all sorts of advice that violates all I know to be true about God and government programs- namely, legal training materials on these issues all seem to be about how to move assets to qualify as more poor than people are. Please let me know where the “faithful” tools are.

    5. Stephen Bloom Says:
      December 28th, 2009 at 8:05 am

      Crystal, my CLE experience in this realm parallels yours. Pro-active tools and resources for lawyers who approach elder planning issues from a perspective that doesn’t include artificially accelerating welfare eligibility are very much needed. Maybe you’ll be the one to create them?

    6. janet king Says:
      May 5th, 2010 at 2:28 am

      I agree with you about the children taking their
      parents money is driven by greed as my children
      are planning. I just wish I knew how to prevent
      it from happening.

    7. Maddy Says:
      September 4th, 2010 at 4:09 am

      I THANK THE LORD FOR LEADING ME TO YOUR WEB SITE. THANKS FOR ALL YOU DO. THANKS FOR YOUR WILLING HEART TO HELP US. I’m caring for my 89 yr, young mom, myself and a caregiver who comes five days a week. Mom is in the best shape she could be in for her age. I don’t mind caring for her. Although I, per say don’t have much of a private life, but I know that I know, I’m doing what I’m supposed to be doing, that is caring for mom. Her pension will run out probably by Jan. 2011. Due to caregiver expenses, etc. I’ve done some research on Medicaid and realize there is help for her. When should I apply for Medicaid? Do you have any suggestions for us? And I don’t intend on putting her in a home at any time. They are horrible to say the least…
      Thank you, M