Community Medicaid – At Home Medicaid Assistance – Nolfo McKenna, Albany NY

Eld Care

It is a very common misperception that Medicaid is only available for individuals in a nursing home. Community Medicaid is Medicaid assistance for those individuals who want to stay at home but need additional care and services. The qualification procedure for community Medicaid is different and more relaxed than for Medicaid in a residential facility. For example, instead of the five year transfer penalty, you can transfer assets out of your name in one month, and apply to qualify for Community Medicaid the following month. So, for those individuals who do not have a long term care plan in place, they may be able to transfer assets to an individual or an irrevocable trust in March and apply for benefits in April. The resource and income levels for the applicants are also different for home care than for residential Medicaid applicants.

Many individuals want to stay in their own home, but believe they must pay for all care received in the home, including personal care services, assistance with medications, meals and other needs. Some individuals would be able to stay in their home, if they have just a few hours a day of assistance. Ultimately, home care should be preferred from a state cost perspective, as nursing home costs are far more expensive than other types of care. There are many people who believe they must have enough money to pay for their home care. One of the benefits of private pay home care over Medicaid paid home care is that the individual and the family determine the number of hours needed on a daily basis, and are instrumental in choosing and researching any individual who comes into their home. It is often frightening for the elderly to open their home to unfamiliar caretakers. If they want to pick their own home care workers, they would have to pay for these workers. If these persons were found incapable or unsatisfactory, they could easily be replaced by another caretaker if they were private pay. However, there are waiver programs under the Medicaid umbrella which allow for more flexibility and choice if you qualify and are accepted.

If the individual needing care is paying for a caretaker privately, it is extremely important to speak with a tax professional regarding how the caretaker is paid. It obviously depends on how many hours the caretaker is in the home and what type of work they perform, but there are many considerations, such as vacation and sick pay, overtime pay, workplace injury, etc. Sometimes, caretakers are paid by the individuals or their families in cash, without considering tax withholdings, workers compensation and other employer mandates. If a caretaker is not being paid as an employee, but meets all the other necessary criteria, and the tax department or IRS may deem such individual to be an employee under the meaning of employee, any pay to such individual must be according to the law for employees. Obviously, there are individuals who would rather be paid “off the books” and may accept a lesser hourly sum if acceptable to the person paying for the care. However, this is often a much bigger problem down the road than just filing out the necessary forms and creating an employer/employee relationship. One of the dangers is that someone could get injured on the job, perhaps lifting the individual needing the care. If the daughter or son of the individual is responsible for hiring this person, they may be deemed the employer for workers compensation purposes, and may be liable for the injuries.

If you choose home care for a loved one, be aware there are care coordinators, also known as Geriatric Care Managers, who provide enormous assistance to those being cared for in their own home. They can coordinate the schedule of the care takers, medications, medical visits, equipment and many other issues.

Family members or friends caring for the individual may establish a personal service contract between themselves and the patient. Often, family members are the primary caregiver of the individual at home, and there is an acceptable methodology to be compensated for such services.

There are also different income and resource limitations for individuals and couples. If an individual has excess resources, they may transfer the excess to an irrevocable trust, or gift to individuals. If an individual has excess income, they may make use of a pooled trust, where their excess income would be used to pay their necessary expenses. The application for such a pooled trust can be cumbersome, but the payoff is the qualification for Medicaid services even with excess income over the allowable maximum. In order to apply for Community Medicaid, one must first ascertain if they exceed the resource and income thresholds. If there are excess resources and/or income, a plan must be put in place to transfer the resources and deal with the excess income, usually through a pooled trust. After all the transfers and trust is in place, an application for Community Medicaid must be submitted to the local Department of Social Services. The application will be reviewed, and the department may request any further necessary information.

In major metropolitan regions, 24 hour community Medicaid is far more common than in more sparsely populated areas. However, many individuals north of New York City do receive many hours of daily care. Obviously, in cities like New York City, where there is a shortage of nursing home beds, home care becomes a very viable option.


Nolfo McKenna – Probate in New York: Exposing the Myths Part 2 – Albany, NY

Probate Part 2 Serving as an Executor

What is involved if you are named as an Executor under a Last Will and Testament? An executor is considered a fiduciary under the law, and with that title comes specific responsibilities. An Executor must act in the best interest of the estate, and follow the decedent’s instructions as directed in the Last Will and Testament. My office gets involved when someone who has been named as an Executor under a Will is seeking to probate that Will. My office handles probate proceedings for estates in Albany NY, Clifton Park NY, Schenectady NY, Rensselaer NY, Saratoga NY, as well as Greene and Ulster County. Each county has its own Surrogate’s Court.

If someone passes away in Albany County, and they resided in Rensselaer County, but owned a condo in Saratoga County for track season, and a cabin on a lake in Ulster County for fishing, we would generally bring the probate proceeding in Rensselaer County, not Albany, Saratoga or Ulster County. If we attempted to bring the probate proceeding in Ulster County, the Surrogate’s Court in Ulster County would most likely reject our probate petition and advise us to file our probate petition in Rensselaer County. This is due to our laws regarding jurisdiction and venue for probate proceedings. What if the executor lives in Albany County? That is not a problem with most courts. Occasionally, a Surrogate’s Court will require a bond filed by the executor, but that is not common in most probate proceedings. My office has represented many executors who reside in another state, including Florida and California.  There may be some delays due to time spent mailing items back and forth, but with today’s technology, it is rarely a problem.

What if the named executor has passed away, is ill or is otherwise unable to act as executor in a probate proceeding? Most attorneys will suggest a client name a Successor Executor in the Will, and by submitting a form or a death certificate from the Primary Executor named in the will, the Successor Executor may serve as the Executor.

Can the Executor start their work immediately after the death of the decedent? The simple answer is no. The executor must be appointed by the appropriate Surrogate’s Court, in the appropriate county. In fact, I advise all Executors to wait until they are properly appointed. However, if there is a pressing matter, such as a property in Albany County that is expected to be sold before the Surrogate’s Court has an opportunity to probate the Will, then my office would petition the Surrogate’s Court for Temporary Letters Testamentary.

When the Will is submitted for probate, the Court will set a return date in Surrogate’s Court. It is at that time anyone who wishes to contest the validity of the Will appears in person, or by their attorney. If no one opposes the probate, and the Court finds no issues with the validity of the Will, the probate process will move forward, and the Court will issue the Executor Letters Testamentary. These letters allow the Executor to act on behalf of the Estate. The Executor may collect the assets of the estates, pay valid debts and distribute property.