In general, a transfer of the family home without consideration (i.e. a gift) within 5 years of an application for Medicaid will make the parent ineligible to receive Medicaid based nursing home care. One very important exception is the “Caregiver Child Exception”.

Pursuant to 42 U.S.C.A. 1396p (c) (2) (A) (iv), the period of ineligibility will not apply if the individual transfers the title to a home to a son or daughter who:

1. Was residing in the transferor’s home for at least 2 years immediately before the date the individual becomes institutionalized; and
2. Who provided care to the individual which permitted the individual to reside at home instead of in an institution.

The home must have been transferred to a child who resided with the parent in the home as that child’s primary residence.
Furthermore, the exception requires that the son or daughter (who received the transferred home) provide substantial care that kept a parent out of the nursing home. The care does not necessarily have to be full time care. “Care” for the purposes of this exception includes most of the following on a regular basis: prepare meals; shops for food and clothing; helps maintain the home; assists with financial affairs (banking, paying bills, taxes); runs errands; provides transportation; provides personal services including bathing, dressing, toileting; arranges for medical appointments; assists with medication.

If planning in advance for the possibility of a transfer of a parent’s home to the caregiving child, the child should be advised to keep a journal of the type of care provided during this two-year period and will be expected to provide multiple written affidavits from one or more of the parent’s health care providers, as well as family, friends etc.) who can verify that, “but for”, the level of care provided by the child, the parent would have needed to reside in a nursing facility or other medical facility.

In one 2012 Massachusetts case a daughter, who was transferred her mother’s residence, had assistance in caring for her mother from her siblings and was working full-time during the applicable period. The court decided that due to the amount of help received and the full-time job the daughter failed to fall within the child care giver exception.

Due to the ever changing rules and regulations in this area families considering the transfer of the family home should consult with an estate planning attorney who is knowledgeable about Medicaid rules and available “pre-planning” opportunities.

Attorney John Polgrean consults regularly with individuals and families in Nashua and from all Southern New Hampshire on estate planning matters including elder law issues confronting families with aging loved ones. Please contact John at (603) 883-0797 to set up a consultation if you or someone you know has questions/concerns in this area.

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.