Will Medicaid require pay back for money received from my mother via quit claim deed if she has lived with us for over 2 years?

Medicaid makes everything so complex- My grandmother is on hospice- bedridden I wish we could place her because I can feel the burnout as well but we are managing-- she's 87- good luck- i will check back for answers

https://ohioseniorlaw.com/medicaid-101-part-5-five-year-lookback-period-penalties/

Did you consult a Medicaid -experienced eldercare attorney before the transfer?

If not, please do so now.

You would think that medicaid would give us caregivers a break and consider the time and money we have put into her caregiving, saving the gov't hundreds of thousands of dollars by keeping her in our home and out of a nursing home for the past 2 years. Especially after she had her leg amputated, which was 1 year ago this week.

I think different states have different lookback periods. I did read there is some kind of exemption for a home transfer for a caregiving child... however I'm not sure what that means for your siblings who also got a transfer.

Retain an eldercare attorney now.

Consider filing an action against original attorney.

BCmama, you wrote:

"We used an attorney but he gave us incorrect information. He was an attorney my sister's step daughter worked for and I found out later there was some behind the scenes secretive stuff and all going on. I kick myself in the butt for trusting her and them. Long story."

Lots of issues here. 

1.   Did you file a grievance with the state bar against this attorney?   And/or did you check his/her reputation either before or after retaining him/her?   Does the "secretive stuff" rise to the issue of a misdemeanor or felony, or breach of professionalism by the attorney?

2.   Were funds expended for what might be erroneous advice?   Did you ask for, or were any funds refunded?

3.   Do you have anything in writing supporting your conclusions, i.e., advice from the attorney on how to proceed?  This could be used as documentation in any claim you pursue against him.

4.   Something else troubles me:  that this attorney employed your sister's step-daughter.    I can't claim for certain that this might have been a conflict of interest on your sister's part, but that was my first thought.

5.   Another troubling issue:   A quit claim deed is normally not the standard for transferring title and vested interests; a warranty deed is.    And "quit claiming" does not provide a warranted title or vested interest transfer; it's more akin to releasing or giving an interest than it is a conveyance. 

Technical, yes, but it could be a factor in the Medicaid review.   Since Medicaid is not a topic on which I have any expertise, I'll avoid speculating any further, other than to reiterate my query why an attorney would choose this method of alleged conveyance.

Also, deeds typically had an identifying provision of "prepared by", which would state the attorney's name.   Is this on the quit claim deed?   I ask b/c it documents some level of involvement in real estate and the estate processing issues.   It may be part of a paper trail that might be necessary if action such as bar association peer review is involved (i.e., the advice for your mother to execute a quit claim vs. warranty deed.)

6.  Was a title search done before execution and recording of the QCD?   This would document whether there were any other encumbrances against the property.  If by chance there were, they're "precedent" to the QCD in terms of priority, and could still be outstanding and valid, and higher in priority to the claims of you and your siblings.

7.  What exactly is this attorney's expertise?   Check his/her website; there's typically a list of practice areas in which the attorney is knowledgeable (or allegedly knowledgeable).


Igloo is the Medicaid expert here; perhaps she'll see your thread and offer an opinion on the validity of these transfers in terms of vested interest transfers.

And b/c of the QCD as opposed to warranty deed, the issue of any prior encumbrances, your questions on Medicaid's potential answer might not be answerable at this time.

Ime You need to - absolutely need to - meet with elder law atty that does Medicaid compliance BEFORE mom ever enters a facility &/or applies for Medicaid. Not one that does estate work but one that understands your state’s LTC Medicaid program AND also is familiar with Real Estate law or has an associate who does RE work.

Atty. issues IMO will revolve around 2 things, 1 for Medicaid &1 for if the QCD & house sale was properly done:
- 1 Medicaid & moms “gifting”. Medicaid looks at where moms income (like her SSA $) & assets (home, land car) went to usually 5 yrs prior to date of her Medicaid application. If “gifting” (transfer of income or assets) happens w in the 5, a penalty can be placed on her application. Not u or your siblings but her. The house QCD is just part of “gifting” as I’m guessing as there’s probably also commingled household expenses as she lives with you since 2019. Amirite? QCD will cause a red flag on her application as property transfers are just a few keystrokes to find out about as it’s all in online databases…. Once flag placed will likely have caseworker take detailed look at how her assets & income have been spent. Medicaid does not expect mom to live on air or dependent on the kindness of strangers. But Medicaid will expect $ to be for her living costs and not underwriting your household.
House sale $ is pretty straightforward for Medicaid, state looks at sale price & places a transfer penalty based on # of days. Ohio LTC Medicaid will have a room&board day rate. So $150k home in state that pays $200 R&B = 750 DAYS ineligible due to penalty starting day she applies for LTC Medicaid.
Extra buttrash in all this that in order to apply for LTC Medicaid she has to already enter a NH & as Medicaid takes 3-5 mos to process her application, by the time penalty placed, mom could have 3-5 mo NH bill. NH will get a CC of penalty & will expect mom, you or whichever family member they can get to to private pay for mom or mom gets a 30 Day notice (to move). If mom moves out, that bill will still exist and NH will turn it over to collections.
- 2 QCD & sale issues. Did mom actually correctly do it? There was no secured lending on property at the time of the QCD, right?
Was property via QCD transferred to ea child & recorded at courthouse in 2019; so each sold your share to new buyer? OR was it mom signing the Act of Sale and then she divvied her $ x 3? Its “gifting” for Medicaid either way but could have clear title issues for the buyer IMO.
Was it sold at FMV (fair market value)? Sold “arms length” so w Realtor & MLS listing? Not sold to relative or neighbor at less than assessor value? Medicaid will want info to determine if the gifting is actually more $ than just Sale $. Like if house had tax assessor value of $215k but had roof & other issues which you think is 40k but a nephew wants place, he’s Grans favorite and he has the $, so y’all sell for $150k…. unless mom has some sort of documentation from 2019 that house is verifiable at 150k, the gifting will be set at 215k not 150k. Dealing with snafus along these lines are ime what a Real Estate atty will do. & why I think one may be needed in your moms situation.

BCmama, I get it, none of us had Medicaid compliance on our radar ages ago when financial things were done. But to deal with them now won’t be a DIY. Mom will need legal that understands Medicaid to provide options to possibly get her eligible if you just know that she’s going to need care in a facility in her future & within 5 yr lookback.

BC, just read your updated posts….. are we correct to assume property was sold “internally”…. that is sold to someone in your family or someone atty knew or sold to an investor that atty or Realtor knew? So house was never really on MLS (like there's not a Zillow listing you can Google); never had independent inspection & appraisal done? If so, you definitely will need Real Estate atty plus elder law one should mom do a Medicaid application.

You mention secretive stuff…. was house sale part of this?
Has the house been sold since mom sold it?
Did atty have mom change any beneficiaries on life insurance, bank accounts or set up a preneed for her?
just trying to figure out what the secret stuff might be……

Please realize Medicaid cannot make you or your Sisters each to repay the 50k ea gift. Mom will be the one that has to deal w this as she will be the one that applies for Medicaid in the future and it will be found to be her asset that the 3 $50k gifts came from, so she’s ineligible. IMO until your able to get a new atty and they work thru the issues, they see what kind of possible caregiver agreement she can legit do w you & hubs, your mom needs to stay w you & hubs as her caregiver and not open up the hornets nest that a LTC Medicaid application would mean. Maybe try to have her reevaluated for hospice again as that’s purely MediCARE.

If there was gross undue influence done to a vulnerable adult to force them to sell home and give house sale $ away, that’s something that might be taken up by APS; and then APS gets law enforcement involved. Y’all shared equally in the $, mom made a fair division & appeared cognitive and competent to do all this. Personally I don’t see elder exploitation for APS to get involved with. Plus as she lives with you, you’d be the first one APS looks at for undue influence.

So, your siblings, what is the probability that if mom needed $ from all the 3 of you to private pay $3,000-$4,000 each month for her NH, all of you would? You know your Sisters best….. would they pay $$$ for moms care as they benefitted from moms gifting? Would the Sissys be willing to pay a bigger % of moms NH costs to offset the past 2 years you & hubs cared for mom in your home?
Or do we stand a better chance of hell freezing over?

All that have responded, you are correct that we should file a claim against the original attorney.

Definitely a conflict of interest that my sister's step daughter works for him. In fact, the "funny" part is that when I got mom another attorney to fight my sisters on the fact that the one has over $30,000 of mom's money in cash that dad asked her to hold for mom, when he had dementia, the original attorney is now representing my 2 sisters against mom. Found out that my sister had gone and got POA over mom and dad back in 2017 and never told anyone. Acted like she got it in 2018 after mom's heart attack. Of course, she no longer has POA as I do since she lives with us and they will not even call mom or come see her lol. Mom and I got APS involved and they involved the Sheriff's Dept. However, the prosecutor's office will not prosecute as when it was done was when Covid hit last year and they said they did not have the staff to do it and that we should pursue it via a civil case. Of which, mom does not have the funds to do. She had already spent $10,000 on a lawyer trying to get the $30,000 and we finally gave up as it was stressing mom out too much and it was not worth it. Hopefully my sister's will choke on the money they stole of mom's.

So my main question to anyone that know's Ohio medicaid laws is about the "Exempt Transfer" and if she would be or we would be exempt from giving the $50,000 we got from the sale of mom's house since she has lived with us for over 2 years and we have had the responsibility of housing and caring for her as she is disabled and elderly. According to things I have read, the Ohio lookback is 5 years and when calculating the amounts it is about $6500 per month that they use for the calculation for the months. At $50,000 divided by $6500 that would only less than 8 months. She has been with us for over 28 months that we have been providing her a home at our home and caring for her, etc. Hopefully what i am trying to say makes sense? Will we or that $50,000 we received be "exempted" and not need to be given or paid to Medicaid if we have to put her in a nursing home?

The entire amount that mom received for the house will be counted. 150k minimum based on what you say was split.

Mom will not be eligible for Medicaid until the penalty period is over. Igloo explained how the system works very well, please heed what she said.

You can Google the Medicaid look back for your area. This will give you lots of information about what you are dealing with. It has a 5 year look back to ensure that no assets were disposed of.

I am sorry that your family screwed your mom over. Sounds like a bunch of bottom feeders that will find out that karma is a biotch. Unfortunately, you and your husband are the ones that have to pay the price for their actions. Because you have your mom and you will be taking care of her until the penalty period is over.

If you have not applied for Medicaid, none of the penalty period starts until you do. So the last 28 months don't count.

They are going to look at how long she could have self paid had her home been sold legitimately and the money used for her care.

I seem to recall that if there has been criminal activity that results in loss of funds, Medicaid will make an exception.

Of course, that means prosecution of your sisters; seems fair to me.

Please hire the best eldercare attorney possible. You need a tiger who can put the fear of the law into your idiot sisters...