Facts and misconceptions

Ten Ways to Protect Your Assets from Mainecare, Medicaid or a Nursing Home

questions from clients to an attorney and his answers

What if I don’t have any assets?

Faced with the high cost of nursing home care, many wonder if it isn’t simpler…

What if I give my assets away?

Do I have to wait 60 months for it to be safe? What happens if you…

What if I stay at home?

Age in place: What if I just stay home? 87 percent of adults aged 65 or older want to stay in…

#10 Don’t Have Any Assets

protect your assets from nursing homes and Mainecare (Medicaid) recovery liens


Many of my workshop attendees ask how they can protect your money from Medicaid (Mainecare)? Nursing home costs are very high. When presented with this fact, some of my workshop attendees simply say, that their plan is not to own anything. Not owning anything is a common response from the people who come to my workshops. After all, I’ve had the same thought when faced with my own fiscal concerns. For instance, paying for my kid’s college, and at the same time, an expensive home repair. The thought occurs to you. Wouldn’t it be simpler if I had nothing? Once you get past this natural reaction, you realize the better option is to invest in a plan. If you have accumulated assets why not use your money to provide for yourself and your loved ones. People tell me everyday that their best friend, parent, brother, sister just went through this.TEN WAYS TO PROTECT YOUR MONEY AND YOUR HOUSE FROM MEDICAID OR A NURSING HOME “One minute we were having brunch together, the next minute I was visiting her in a nursing home. She lived in a room with two other people. One was shouting all the time, the other was watching CNN so loud that neither of us could hear the other. I want a private room if it comes to that.” And there it is, “I want a private room.” How are you going to get the private room if you have no assets? If you have no money to pay for it? If you don’t have any assets you don’t have the ability to make yourself more comfortable if you do need nursing home care. Number 10 on the list doesn’t sound very appealing. As I said, it is something people ask all the time. Despite the fact that not having anything can “protect it” you don’t have it either. The benefits of having stuff far outweighs the alternative. The fact is, most people, when they say they will not have any assets, what they mean is that they are going to give their asset to their kids. That gift will make you ineligible for Mainecare. So, sure, you may not have any assets, but you also, will not have any way to pay for the nursing home. 


Estate Planning is about  Planning

Crisis -or- Preplan?

Learn which strategies work best with “Preplanning” and which work best with “Crisis Planning” to protect assets

#9 Give your stuff away (60 months before applying)

Nursing Home Costs and the Five Year Lookback

What is this 60 month rule? When answering the question how can you protect your money from medicaid, first you must understand what medicaid is. Medicaid is a government program that pays for a nursing home if you can’t afford it. In Maine it is called Mainecare. But how does Medicaid or Mainecare know if I can afford it? They look at 60 months, or five years’ worth of your financial history. That is the 60-month rule or the five year lookback with nursing homes and Medicaid. So, you say to me, what if I give my stuff away 60 months or 5 years before I apply. “Yes!” The lawyer says, “that will work”.

Gifting Strategies that Don’t Work

However, now you’re back to our number 10 on the top ten list. You have no stuff. But, you say, won’t the person I gave my stuff to be so grateful for the gift that they’ll use it to pay for my private room? Remember the private room in number 10? For “private room” fill in the blank with anything you (or your spouse) might want that will make your quality of life a little better but may not be covered by Medicaid. Or maybe you aren’t in a nursing home. Now you’re the one who has an expensive home repair. Or maybe you just want to buy a new car.

“Yes!” The lawyer says, “that will work… BUT now you have no stuff!”

Well, the person or persons (the kids maybe?) you gave your stuff to 60 months and one day ago may be so grateful that they will buy you that car or fix your house. And if you’re in a nursing home already they may visit, and find out what you need, and pay for it with what was formerly your money.

Maybe the person you gave the money will use it for you… maybe they won’t

What Happened to my Stuff?

But they may not. They may decide that you don’t need it any more. Even if they’re the kind who never forgets, guess what? They just got served with divorce papers, and your ex-son-in-law or ex-daughter-in-law doesn’t want to use his or her share of your stuff to pay for your fussy quality of life in a nursing home. Now substitute divorce for law suit, or bankruptcy, or bad investment, or college tuition, or drug habit, and you get the idea of where your money went. Oh, wait, I misspoke, it’s not your money any more, you gave it away. So, number 9, giving your stuff away 5 years and a day before applying for Medicaid to pay for your nursing home does not insure that you may benefit from it again – even with a loyal kid.

Estate Planning is about  What could go wrong

Gifting strategies that work.

Learn how to protect assets from possible nursing home costs, but also from life circumstances. Gift but maintain control.

#8 Don’t Go Into A Nursing Home in the First Place

Aging in Place

This is the “aging in place” option. Now we’re getting somewhere. The National Institute on Aging has a great article on aging in place if you’re not familiar with this concept. But you probably are, because according to the AARP “87 percent of adults age 65+ want to stay in their current home and community as they age.

So, Raise Your Hand if You Would Prefer to Age in Place

Among people age 50 to 64, 71 percent of people want to age in place.” For this option you don’t even need a Medicaid lawyer. Or do you? In the state of Maine, or New York, states where I practice, you can qualify for home-based care in thirty days or so. You should consult with a Estate Planning lawyer if you want to know the details. Number 8 on the Top Ten Ways to Protect Your Stuff from Medicaid or a Nursing Home list means staying home as long as possible. If you need help with what they call the “activities of daily living” – shopping, dressing, cooking, you may qualify.

Income and Asset Limits

If you’d like to protect your money from Medicaid, aging in place is a good place to start. But if you have too much money or property you won’t qualify. So how do you qualify if you have too much money or property? We’re back to Option 9 again – give your stuff away. With all the negatives about Option 9 – the risk of loss to divorce, law suits, bankruptcy, or just plain refusal of the gift recipient to use your stuff for your benefit – Option 9 still doesn’t seem foolproof. But don’t lose heart yet. In a future option on this list you’ll discover how you can maintain control of assets and protect them at the same time.

“87 percent of adults age 65+ want to stay in their current home "

50+ Demographics


"Over 50 percent of nondrivers over age 65 do not leave home most days, partly because of a lack of transportation options."

Source: Aging in Place

A State Survey of Livability Policies and Practices

“at least 70 percent of people over age 65 will require some long-term care services at some point in their lives"

US Department of Health & Human Services 

Long Term Care




Have your kids take care of you

“After all, I’m saving it for you. If you really want something when I’m gone…”

Long term care insurance

Is Long Term Care Insurance affordable? What if I don’t use it?

Buy an Annuity

Are annuities right for every circumstance? Learn the difference between Crisis and Preplanning

#7 Have the Kids Take Care of You

I Took Care of You, Now Return the Favor

As a protection from nursing home costs, you could have your kids take care of you. I’ve had clients come to my office with the child who is the candidate for this honor. Sometimes the child doesn’t know this. They sit in front of my desk and let me explain asset protection strategies. When I get to the nursing home issue, the parent confidently pronounces “if my son doesn’t take care of me, then he’ll get nothing when I’m gone.” Then they look over at the (middle aged) child sitting next to them – eyebrows raised. “Isn’t that right son?” they say.

It’s important to consider: is the caretaker child in a position to help?


Can you age in place?

I have seen this work. But it doesn’t work for everyone. Often the caretaker, in their late sixties, after having taken care of the parent for ten or fifteen years, asks for some legal advice. What do they want to know? Is there going to be a lien on the house. I ask some questions. Many times, things have worked out well. Usually they have had a Medicaid home care aid coming to the house for years (see Option 8 Aging in Place). They ask me if there will be a Medicaid lien on mom’s house when she passes away to pay back the state for those ten years of home aids. I analyze their situation and apply the law. If necessary, we put a plan in place to prevent the possibility of a Medicaid lien. But for Option 7 to work, the caretaker child must be willing to take on this responsibility in the first place. They should also be economically capable of doing it. If a well-meaning son or daughter takes on this responsibility, and then subsequently loses their job, or jeopardizes necessary income sources, it is a recipe for failure.

Can Your Children Do It?

Many children would love to keep their parents at home, but simply cannot do it. They have jobs and kids and are simply trying to keep it together without also turning their house into a residential care facility. But still, statistics have shown that the longer you are able to stay at home, the less likely you will need a stay at a nursing home. And if you do end up going into a nursing home, then the stay is much shorter. There is an asset protection plan that takes both into consideration. In upcoming options you’ll learn how you can plan to qualify for benefits to help you age in place, maintain control of assets you give away, and if the time comes, qualify for a nursing home.

#6 Long Term Care Insurance

Long Term Care Insurance & State Plans
In order to encourage people to buy Long Term Care Insurance, the States have formed partnerships with insurance companies. The theory is, if you buy the policy, and offset the cost of long term care for a number of years while you are in a nursing home, the State will pay for the rest of your stay. The State puts it this way: “The purpose of the Maine Long-Term Care Insurance Partnership is to make the purchase of shorter term more comprehensive long-term care insurance meaningful by linking these special policies (called Partnership qualified policies) with Medicaid for those who continue to require care.” If you purchase a shorter term policy, and you need care after the term ends, Medicaid will pay the care going forward.
Long Term Care as Part of Life Insurance
Presently you can get a Long Term Care insurance policy that combines regular life insurance. A NY Times article covers some of the issues related to these policies. The new policies provide a death benefit or some other form of benefit if the insured does not end up using the Long Term Care benefit. The prices of these policies have come down over the years. Insurance companies suggest that you apply for them when you are younger so that you can be qualified. Health issues and age can disqualify you from coverage.
You can view statistics about the cost of Long Term Care Insurance policies online, or request a quote. Since 70 percent of people over age 65 need some long-term care at some point in their lives, it is an important concern.
But what if you can’t qualify for Long Term Care insurance? What if you’re at a stage in your life where the premiums are just too high? Than you need to keep reading this article.
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#5 Get an Annuity

“Crisis Planning” vs “Preplanning”

What’s an annuity? An annuity is a contract with an insurance company. You pay them money and in exchange they agree to make a stream of payments to you or another person you indicate, over a term of years. Why are annuities tools used to protect assets from nursing home and Medicaid? The answer is very complicated. First we have to determine if you are in Crisis or Preplanning stage of your estate plan. If a spouse has just been admitted or is about to go into a nursing home that is a Crisis Planning case. If you’re not sure if either of you will ever need a nursing home you are a candidate for Preplanning. What you really need to know is not how the annuity works, but when you should use an annuity? Are annuities Crisis tools or Preplanning tools?

It is far more important to know when the right time is to use an annuity than all the details surrounding Medicaid qualifying annuities. For instance, if you purchase an annuity that doesn’t pay out for a number of years, and one spouse goes into a nursing home before the payout begins – that’s a problem. If you purchase an annuity and payments go to the spouse who then needs to go into the nursing home – that’s a problem.

Can an Annuity Help You Protect Your Money from Medicaid?

That’s why annuities usually form a part of a Crisis plan rather than a Preplan. Estate planning attorneys generally characterize Medicaid asset protection planning as “Crisis” planning or “Preplanning”. In a Crisis plan we know who is going into the nursing home, if there is a spouse, and if the spouse is going to remain living at home. When a client is suddenly faced with an immediate need to be in a nursing home it is often unexpected. In a Preplan we do not know if or when a spouse may have to go into a nursing home. Purchasing a Medicaid qualifying annuity can keep a stream of income payments going to the spouse who remains at home, after a spouse goes into a nursing home. Depending on the situation and the circumstances, annuities can save a lot of the couple’s money. However, annuities are not a magic wand. You shouldn’t just run out and purchase a bunch of annuity contracts. So, if we’re aging in place, or Preplanning Option 5, annuities probably aren’t very useful.




Get a Divorce or Refuse to Pay

I’ve heard that Medicaid is forced to pay for your spouse, if I divorce him or her?

Use my money to pay for my children

If I have a child who still needs my help, or lives with me, can I use my money for them and still qualify for Medicaid?

Use an Asset Protection Trust

Is there a kind of trust I can use that will protect my money or my house from nursing homes and Medicaid?

#4 Get a Divorce or Refuse to Pay

I only include this, because, even after twenty years of trying to discourage this idea, people still tell me that divorce is their Medicaid approval plan. Most recently a CPA, a seasoned professional asked me if a couple should divorce to qualify for Mainecare. What troubled me was not that she asked, but that she simply wanted me to confirm her belief that refusal to pay or divorce was a good plan to get Medicaid to pay for a nursing home. There is presently a hardship rule under the Medicaid rules for an applicant who can’t get money they may be entitled to. If a spouse refuses to pay, it is possible the nursing home, or institutional spouse may still be approved for Medicaid. However, it is not automatic. A guardian could be appointed to sue the non-cooperative spouse or other person who has the money and refuses.

I Do, But Now “I Don’t”

“Well”, says the husband and wife, who have been married for forty years, “we’ll simply get divorced”.
Think back to Option 5, the annuity. In the annuity plan, if you recall, it is important to know ahead of time who is going into the nursing home. Similarly with the divorce or refusal to pay, it is important to know who needs nursing home care. Single people have lower resource and income limits. That means they are not allowed to own as much property. What if the divorced spouse with more income ends up needing the nursing home? What if the couple divorces and the ex-spouse is sued by DHHS? Also, transfers to a spouse, currently, are exempt transfers. So, in a Crisis plan (remember Crisis vs Preplanning distinction from Option 5?) as I was saying, in a Crisis plan, we often make exempt transfers from the Institutional Spouse to the Community Spouse. But wait, you’ve divorced so we can’t use that rule anymore. Put aside the fact that the divorce could be construed as a form of fraud. So, refusal or divorce could cause you to be sued for support payments. But you could also have better Crisis planning options as a married couple. “But” you ask, “didn’t you tell me that there was an asset protection plan that qualifies me or my spouse for benefits to help us age in place, maintain control of assets we give away, and if the time comes, qualify us for a nursing home?” Yes, that is coming.

#3 Use Your Money or House to Take Care of Your Child or Children

Special Needs Trusts, Supplemental Needs Trusts

Option 3 on our list of the Top Ten Ways to Protect Your Money and Your House from Medicaid or a Nursing Home is using your money to take care of your kids. If you spend your money on your children, is the money you spent safe from a nursing home? The answer is, it depends. Is this an adult child? Is the child disabled? Did the child give up work opportunities to move in with you and help take care of you for the last ten years? These are important questions. If you’re interested in saving your money or house from Medicaid or a nursing home, in some circumstances you can transfer it to a child or even a grandchild. If the child or grandchild is disabled, you could transfer money to a trust for the child’s benefit. But what if the intended child recipient of your house or money is not disabled? As in many of the other techniques used to protect your money or house from a nursing home, a transfer-for-value rule may apply. There are qualifying factors, but in some circumstances, you can transfer money or a house to your child and it will be protected from Medicaid or a nursing home.

Make Sure You Have Proof

But beware. This is not a simple proposition. There is proof required, and timing is also an issue. Be careful also, who is doing the transferring. I had a circumstance where the father had been in a nursing home for years. Before going in, the father gave a power of attorney to his son. The son paid the nursing home out of his own money for a couple of months. But he couldn’t afford it and stopped paying. The father had an old run-down cabin. After several years the son used the power of attorney to transfer the cabin to himself. After his father died, the nursing home sued him, saying he misused the power of attorney improperly, and that he should return the value of the cabin to the estate to pay the nursing home. Needless to say this caused a great deal of stress. If they had come to me first, all of that could easily have been avoided. There are other problems with a transfer to a caretaker child.

But what if you have more than one child? Won’t the other non-caretaker children be angry at the caretaker child for getting the whole house? What if the caretaker child doesn’t share? These options are excellent if you have a disabled child or grandchild. But if you don’t Option 3 may be better suited to a Crisis Plan than a Preplan. Again, these rules are complicated, so it is best you consult with a Medicaid asset protection attorney.

#2 Use an Asset Protection Trust

I Thought Only Rich People Needed a Trust?

Option 2 of the top ten ways to protect your money and house from Medicaid or a nursing home is using an asset protection trust. What is a Medicaid asset protection trust? It is an irrevocable trust. It works best as a Preplanning tool. Remember in Option #5 where I explained the difference between a Medicaid Crisis Plan and a Preplan? A Crisis plan is when you know someone is going into a nursing home, or they have been discharged from the hospital, and are going into a nursing home. Preplanning is when you don’t know if one or both of you will need to spend time in a nursing home. But even after reading options 10 through 3 many clients are reluctant to put their money or their house in an irrevocable trust. Why? They don’t want to lose control. They ask, if I put my property in an irrevocable trust, won’t I lose control over it? The short answer is yes and no.


Percent of Folks Over 65 Who Will Require Some Nursing Home Care

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#2 Use an Asset Protection Trust


Option 2 of the top ten ways to protect your money and house from Medicaid or a nursing home is using an asset protection trust – continued from above

You don’t have to give up all control over your property if you put it into a Medicaid asset protection trust. However, you do have to give up something. But for most people, what they give up is well worth it for the protection and peace of mind they receive in return. The important thing to know about irrevocable trusts as Medicaid Preplanning tools is that they do work. And there are ways to keep control as well as benefit from the assets. In Preplanning situations, these trusts work well, and sometimes can be used to save the entire estate. Typically, a good asset protection trust Preplan can save around sixty percent of the estate immediately – some can preserve all of your assets for your use.

Learn how to protect & maintain control.

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Time is an important factor in preserving assets.
And in the months to come, if you stay out of a nursing home, save more – and after 60 months save everything. Option 2 sounds like it includes protecting most or all of your money and your house, while at the same time maintaining control, and also getting the benefit of the property you give away. If this is true than why don’t more people do it?

Time is an important factor in preserving assets.

People are doing it. You just haven’t had it explained to you yet. You are faced with the possibility of a nursing home, but put off making a plan because it is not a certainty. But there are more benefits to this plan. This plan can also give your beneficiaries protections after you’re gone. You can protect your surviving spouse from nursing home liens. You can protect your kids and grandkids from divorce, substance abuse, bankruptcy, and law suits as well. But you can’t do any of those things if you don’t make a plan.

#1 Make a Plan…NOW!

Estate Planning

Plan Now! Don’t Wait for a Crisis

A drum-roll please! The number one strategy of the top ten ways to protect your money and your house from Medicaid or a nursing home is… Plan! Now! Make an estate plan with an estate planning lawyer. That’s why we call our services estate planning. It takes some thought and professional expertise to deal with the possibility of an estate-destroying stay in a nursing home. One AARP survey showed that only 30% of people surveyed have a last will and testament. But a more telling statistic by Forbes magazine stated that 70% of intergenerational wealth transfers fail. What does that mean? Well, a Will is never going to protect your money and your house from Medicaid or a nursing home. So even if you’re among the thirty percent who have a will, you may still be among the seventy percent of people whose gift fails despite having a Will. Why? Because a Will does not have any effect until you die. A Will does not give asset protection during your life. A Will also cannot give asset protection to your family . What does it mean for an intergenerational wealth transfer to fail? It means simply this: you thought your kid was going to get your money, or house when you died, and they didn’t.

Statistics Show Most People Don’t Have a Plan

Why? The simple answer is that the seventy percent of people did not have a plan in place that made sure their beneficiaries got their money or their house. After more than twenty years of estate planning I’m certain that many of the transfers that worked were pure luck. They could just as easily have been entirely lost. There are many reasons this happens. The reason we’re focusing on for this top ten list is loss due to the high cost of nursing home care. If you have a Will, but have to spend every penny on a nursing home, or die with a Medicaid lien on your house, then your beneficiaries are not going to receive that intended gift. Or, perhaps they saved the money from the nursing home, and they even had a Will. But the day after their son or daughter inherited the money, they got divorced, or went bankrupt, or got sued, or had a substance abuse issue. Now they lost the all of the inheritance or half of the inheritance to an ex-son-in-law or ex-daughter-in-law.

He Who Fails to Prepare, Prepares for Failure

Waiting is not a strategy. It sounds simple, but our number 1 of the Top Ten Ways to Protect Your Money and Your House from Medicaid or a Nursing Home is to make a plan. Working with an estate planning attorney, you can find out which of these strategies fit your family situation.
Since so few people actually have an estate plan, the amount of property lost to taxes and unintended creditors, is actually far greater than the statistics show. There are three things you need to know to make your estate plan: 1) Choose the right documents; 2) Put your voice into them; and 3) update or change your plan when your family situation changes or to take advantage of changes in the law.

Penbay Estate Planning Law Center

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Camden, ME 04843

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