I have good news for those of you on Medicaid, and for your beneficiaries – at least for now: The New York State legislature and the governor have just repealed the law they passed last year that had expanded Medicaid’s right to recover from an estate money it paid for benefits. [See prior articles on this subject at bollhoferlaw.com on the “Articles” page.]
This means that when someone dies, Medicaid still may only seek to be paid back from assets left in that person’s “probate estate.” Assets left to specific beneficiaries, in joint accounts and in trusts will not be subject to Medicaid’s claim. Significantly for many, this also means that the values of life estates are protected.
State representatives finally recognized that the law had constitutional problems, and that the regulations created by the State Health Department conflicted with federal and state laws, and therefore likely would be deemed invalid by courts. Elder law attorneys made it clear that affected parties were ready to litigate.
This issue likely will come up again, either during the budget bill process, as it did this year, or in proposed independent legislation. I will report on any changes that might occur. Meanwhile, if you have any thoughts about applying for Medicaid, in or out of a nursing home, you should seek legal assistance.
Copyright 2012 Joseph A. Bollhofer, Esq.
Joseph A. Bollhofer, Esq., is an attorney who practices law in the areas of elder law, Medicaid, estate and business planning and administration, real estate and personal injury. He is a member of the National Academy of Elder Law Attorneys (NAELA) and of the Elder Law, Real Property, and Surrogate’s Court Committees of the Suffolk County Bar Association and the Elder Law, Real Property Law and Torts, Insurance and Negligence Sections of the New York State Bar Association. He has been serving area residents since 1985 and is admitted to practice law in New York and New Jersey. His office is located at 291 Lake Ave., St. James, NY. (631-584-0100). For reprints of this article and others send a request to firstname.lastname@example.org or visit www.bollhoferlaw.com.