Protecting your Legacy for over 20 Years... 262-657-3500

Elder Law

Elder Law

Elder law encompasses the area of law addressing the needs of our elderly clients, including the counseling and assistance with advance directives, guardianships and Title XIX Medicaid planning. 

Title XIX is a joint federal and state program that would pay for your nursing home care if you were unable to pay for your own care. In general, the Title XIX rules would require you to use your own assets and income first, before receiving Title XIX benefits. The program is designed to assist those with minimal assets and minimal income. Thus, in order to qualify for Title XIX one must typically have no more than $2,000 in countable cash assets as well as other personal property. 

Many people are concerned that assets they own could be lost after a fairly short stay in a nursing home. Often, people would like to make gifts to their children or other family members so that their children receive some inheritance even if both parents require long term care is required. In order to fully protect assets from nursing home creditors, it is necessary to relinquish complete control and ownership of the asset. The process of giving away assets in order to better qualify for Title XIX benefits is known as “divestment.” If you make gifts you may be ineligible for Title XIX benefits for a predetermined period following the date of the gift. It is important that you not apply for Title XIX benefits until you have determined whether the five years has run and what effect applying for Title XIX may have on your eligibility.

One of the common features of Title XIX planning is the creation of an “irrevocable trust” into which you can transfer certain assets so that they would not be countable as resources for any future Medicaid application. However, because an irrevocable trust cannot easily be changed or terminated, you lose ownership and control over any assets you transfer into an irrevocable trust. For example, your home could hypothetically be transferred into an irrevocable trust now, with you retaining a leasehold right to live in the home for the remainder of your lifetime. As long as you do not require nursing home care within the next 5 years, the home would be protected from nursing home creditors and you would be eligible for Title XIX without consideration of the home. Because these types of trusts are deemed “irrevocable,” you cannot change or terminate the trust after its creation. Assets that you transfer to an irrevocable trust are no longer considered your assets, and you therefore lose a certain degree of control over those assets.

Any assets that you transfer to an irrevocable trust would be considered a completed gift in which you would have no rights or interest. Therefore, you must keep in mind that this would be deemed a completed gift of your property and you can't change your mind later and ask for the property back. The Trust becomes the sole owner of the property and the trustee, and your children or other named beneficiary, would have complete control over what happens to that property and any proceeds if the property is sold.There is also tax consequences with any transfer of assets to an Irrevocable Trust.

Contact Attorney Thomas A. Camilli, Jr. and the experienced professionals at Godin Geraghty Puntillo Camilli, S.C. at 262-657-3500 for further information regarding Title XIX planning.

Contact Us

Thomas A. Camilli, Jr. and the firm of Godin Geraghty Puntillo Camilli, S.C. has extensive experience to assist you with all your legal needs. We look forward to the opportunity to help you!