Insight

When am I Going Home?

When am I Going Home?

Anthony J. Enea

Anthony J. Enea

October 7, 2019 12:25 PM

When Am I Going Home?

By: Anthony J. Enea, Esq.

My clients and their families regularly tell me that their spouses and loved ones who are admitted to a nursing home or rehab facility regularly ask them… “When am I going home?” It has been my experience that the vast majority of seniors would prefer to age in their own home rather than a nursing home and/or other long-term care facility.

The decision of whether one will be able to age at home is contingent upon a number of factors, such as one’s finances, eligibility for the Medicaid home care services, physical and mental condition, the level of care one requires and whether the home is suitable and/or can be made suitable to serve one’s needs.

It is a decision that is both complex and heart wrenching for the persons placed in the position of making the decision. I have experienced first hand the emotional toll the decision to place a mother, father and/or grandparent in a home inflicts upon oneself and the family members involved.

Fortunately, in New York City, the five boroughs, Westchester, Rockland, Putnam and immediately adjacent counties, the Medicaid home care program is accessible and an obvious first alternative to nursing home care. Perhaps, the most important factor in making Medicaid home care such an important first option is that unlike eligibility for nursing home Medicaid, there is no five year look back period for the uncompensated non-exempt transfer of assets (gifts) with respect to eligibility for home care Medicaid.

If one were to transfer all of their non-IRA/ non retirement assets to their children and/or a Medicaid Asset Protection Trust, for example, on the first of the month following the transfer the applicant would be financially eligible for home care Medicaid services. Additionally, as with the Medicaid nursing home program, the home care program also permits the spousal impoverishment rules. Thus, if assets are transferred from an ill spouse to the well spouse, the well spouse can refuse to utilize their assets and income to support the ill spouse, and can instead execute a spousal refusal letter. This would allow the ill spouse to become eligible for nursing home and/or home care Medicaid subject to Medicaid’s right to pursue a claim against the refusing spouse for the value of the services Medicaid provided.

If the option of avoiding a spousal transfer and executing a spousal refusal is available either because the well spouses assets and income are below the community spouse resources and income allowance or because both the applicant and spouse are willing to transfer their non IRA/ non retirement assets to a Medicaid Asset Protection Trust and/or to their children or others, then executing a spousal refusal letter and its financial consequences can be avoided.

The eligibility requirements for Medicaid home care require that the applicant necessitate assistance with the activities of daily living (walking, dressing, bathing, toileting and cooking). From a financial eligibility perspective, the applicant, if single, can have no more than $15,450 of savings and no more than $879 per month of income. If the applicant has more than $879 per month of income, they can enroll in a Pooled Community Trust managed by a charity, and their income above the $879 can be utilized to pay their expenses for housing, clothing, food, heating, electrical, gas, taxes and insurance, etc. If the Pooled Community Trust is not utilized by the applicant, however, they would lose their monthly income in excess of the $879. For a couple residing in the community needing home care they can have up to $1,287 per month of income and $22,800 of savings.

In conclusion, there are numerous beneficial reasons for one’s health and mental well being to remain at a home as long as possible. The Medicaid home care program in New York provides seniors with a significant incentive to remain and age at home.

Anthony J. Enea, Esq. is the managing member of Enea, Scanlan & Sirignano, LLP with offices in White Plains and Somers, NY. Mr. Enea is chair of the New York State Bar Association’s Senior Lawyers Section. He was named Best Lawyers’ 2019 Trusts and Estates “Lawyer of the Year” in White Plains and Westchester County’s Leading Elder Care Attorney at the Above the Bar Awards.

Related Articles

In the News: Texas 2019


by Best Lawyers

A roundup of relevant news from lawyers listed in Texas.

Legal News Roundup Texas

What's The Difference Between Estates and Trusts?


by Best Lawyers

What is the difference between an estate and a trust? Read below to learn more about estates and trusts, including what sets them apart from each other.

Animated figure stands confused on arrow pointing two ways

A Texas-Sized Reputation


by Justin Smulison

Dan Sciano’s proven record of success and leadership has made him a highly sought-after plaintiff’s litigator in the Lone Star State.

Dan Sciano: Expert Civil Litigator

Ellen G. Makofsky, 2018 "Lawyer of the Year" for Elder Law


by Nicole Ortiz

Ellen G. Makofsky of Makofsky and Associates was named 2018 "Lawyer of the Year" in Long Island for Elder Law.

Ellen G. Makofsky LOTY

Anthony J. Enea, 2018 "Lawyer of the Year" for Elder Law


by Nicole Ortiz

Anthony J. Enea of Enea, Scanlan & Sirignano, LLP was named 2018 "Lawyer of the Year" in White Plains for Elder Law.

Anthony J. Enea LOTY

Protect Your Pets: Westchester Elder Law Attorney Anthony Enea Explains How to Provide for Pets in an Estate Plan


by Anthony J. Enea

Along with pet ownership comes the responsibility of ensuring your companion animal's care and well-being - even if that extends beyond your lifetime.

Elder Law - Pets Estate Plan

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background