Legal Triage:
Medi-Cal Eligibility by Brian O’Toole
A well-crafted estate plan is a work of art: Carefully constructed documents addressing complex legal issues ranging from fraught family dynamics to sophisticated tax avoidance strategies that create a family legacy. Then life happens. Or rather, death tries to happen, but the miracle of modern medicine extends life at the price of severe mental and/or physical incapacity. Most typically, a loved one requires a skilled nursing facility with the expectation that returning home is neither medically nor financially possible. Skilled nursing costs anywhere from $300 - $1,000/day, a financially unsustainable undertaking for most. Many turn to Medi-Cal benefits to help pay for skilled nursing care. If you are the attorney that put together the estate plan for a recently incapacitated client, the family often
turns to you to guide them through the crisis. The following summarizes some issues arising during the panicked phone call from the family1:
1. What estate planning tools do you have to work with? For purposes of accelerating MediCal eligibility, Elder Law attorneys often provide flexibility for the agent acting under a Durable Power of Attorney to amend the trust and to make gifts of the principal’s assets. A Living Trust and Power of Attorney for Finances are staples in any estate plan, and they are particularly important when you are attempting to “accelerate financial eligibility” for Medi-Cal benefits. Not every Trust or Power of Attorney allows the necessary flexibility, and amendments might be required. Probate Code §§ 15401 & 4264 require mirroring language in
the Trust and Power of Attorney to enable a non-Settlor Trustee to amend or revoke a trust. Section 4264 also requires express language to enable the agent to make gifts of the principal’s assets.
2. Medicare Coverage of Skilled Nursing Care Medicare will only provide coverage so long as the patient is rehabilitating, or so long as skilled nursing care is required for the patient to maintain their health status. Jimmo v. Sebelius [No. 5:11-CV17 (D. Vt)], Medicare will cover up to 100 days of skilled nursing care. Days 1-20 are covered in full, and a copayment exists for days 21-100. Supplemental Medicare insurance often covers the entire copayment. Medicare’s skilled nursing care benefits require that the patient be admitted (NOT held in observational
Continued on page 27
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
25
