Questions to Ask a Medicaid Attorney
For families facing nursing home bills or planning ahead for long term care. These 20 questions test whether a Medicaid attorney knows your state's rules and help you leave the consultation with an actual plan.
The questions
Open any question for the note
Are you a Certified Elder Law Attorney, and what share of your practice is long term care Medicaid?
Why ask it
The CELA credential from the National Elder Law Foundation requires documented casework and a written exam, so it separates specialists from general practitioners. If Medicaid is less than a quarter of their work, they may be learning your state's rules on your time and your money.
How many Medicaid long term care applications did you file in this state last year, and how many were approved without an appeal?
Why ask it
Medicaid rules vary sharply by state and even by county caseworker, so recent local volume matters more than years in practice. A firm that files dozens a year knows which documentation a caseworker will reject on sight.
Which program should we be applying for: institutional nursing home Medicaid, a home and community based services waiver, or PACE?
Why ask it
These programs have different asset tests, different waiting lists and very different lives attached to them. An attorney who jumps straight to nursing home planning without asking about staying at home is not looking at the whole picture.
Based on our actual numbers, do we qualify today, and if not, exactly which assets are countable and which are exempt?
Why ask it
You want the gap stated as a dollar figure, not as a general reassurance. Retirement accounts, life insurance cash value, a second vehicle and jointly held accounts are treated very differently from state to state, and that classification drives the entire plan.
Is this an income cap state, and will we need a qualified income trust or Miller trust?
Why ask it
In income cap states, income even one dollar over the limit blocks eligibility entirely unless the excess is routed through a qualified income trust each month. Ask who sets it up, who does the monthly deposits, and what happens if a month gets missed.
Which gifts or transfers we have already made fall inside the five year look back, and what would they cost us?
Why ask it
Families routinely disclose helping a grandchild with tuition or moving money to a child's account, not realizing those are reportable transfers. Getting them on the table in the first meeting lets the attorney plan around them instead of being ambushed by a bank statement later.
What is our state's penalty divisor, and when would a transfer penalty period actually begin?
Why ask it
The penalty is the transferred amount divided by the state's average monthly private pay cost, and the clock does not start until the applicant is otherwise eligible and applying. Understanding this timing is what makes strategies like partial gifting with a promissory note either viable or reckless.
What spend down options are legitimate for us, and which purchases would a caseworker challenge?
Why ask it
Paying off a mortgage, an irrevocable burial trust, home repairs, dental work or a replacement vehicle can convert countable assets into exempt ones. The answer should be a specific shopping list for your situation, with receipts and timing spelled out.
What happens to the house, and does our equity exceed the state home equity limit?
Why ask it
The primary residence is often exempt while the applicant or a spouse lives there or states an intent to return, but high equity homes can blow past the federal limit. This is also where you learn whether selling the house would be the single worst move you could make.
Do we qualify for the caregiver child exemption or the sibling exemption to transfer the home without penalty?
Why ask it
A child who lived in the home and provided care that delayed nursing home placement for two years can sometimes receive the house penalty free, as can a co-resident sibling with an equity interest. These exemptions demand specific proof, so ask what documentation the state actually accepts.
If we are married, how much can the community spouse keep, and how does the monthly income allowance work?
Why ask it
The community spouse resource allowance and the minimum monthly maintenance needs allowance decide whether the healthy spouse stays financially afloat. Ask whether a court order or fair hearing could raise the income allowance in your case.
Would a Medicaid compliant annuity, a promissory note, or spousal refusal be appropriate here?
Why ask it
These are the main crisis planning tools when someone is already in a facility and the five year clock cannot be beaten. They are also state sensitive and easy to structure wrongly, so ask for examples of cases where this attorney has used each one locally.
Is an irrevocable Medicaid asset protection trust right for us, or are we too close to needing care?
Why ask it
Funding a trust starts a new five year clock and means giving up control of the assets permanently. A good answer weighs your health, your age and your liquidity rather than selling the trust as a default product.
Can we pay a family member for caregiving through a personal care agreement, and how must it be documented?
Why ask it
A written agreement with a market rate, an hourly log and reported income can move money legitimately and compensate a relative who has been working for free. Informal cash to a daughter, by contrast, gets counted as a gift and penalized.
Do we have a disabled or blind family member who could receive assets without triggering a penalty?
Why ask it
Transfers to a disabled child of any age, or to a first party or third party special needs trust for their benefit, are generally exempt from the look back. Families often overlook this because they think of it as estate planning rather than eligibility planning.
Once approved, how much of the monthly income goes to the facility, and what is the personal needs allowance?
Why ask it
Medicaid rarely covers the full bill. Nearly all income is applied as patient liability, leaving a small monthly personal needs allowance, so you need this number before assuming the household budget still works.
How does estate recovery work in this state, and can they place a claim or lien on the house after death?
Why ask it
Every state must try to recover what Medicaid paid, usually through the probate estate, and some go further. Ask which transfers or deed changes protect the home from recovery and which merely delay it.
Who assembles and files the application, follows up with the caseworker, and requests retroactive coverage?
Why ask it
Some firms do the entire filing, others hand you a document checklist and disappear. Also confirm whether they will pursue the three months of retroactive coverage that can wipe out bills already sitting on your kitchen table.
What happens at annual recertification, and what could cause us to lose eligibility later?
Why ask it
An inheritance, a tax refund that sits too long, a personal injury settlement or an unreported account can end coverage and restart the whole ordeal. Ask what you must report, how quickly, and whether the firm handles renewals.
What is your total fee, what does it include, and is a denial or fair hearing appeal extra?
Why ask it
Get the structure in writing: flat fee for the plan and filing, hourly for litigation, plus court or trust drafting costs. Also ask how the fee is paid if the assets are about to be spent down, because paying legal fees is itself a legitimate use of countable assets.
Getting Real Value From a Medicaid Planning Consultation
Practical guidance for the conversation itself
How to Prepare and Run the Meeting
Bring five years of paper, not summaries
Caseworkers verify, they do not take your word. Show up with five years of statements for every bank, brokerage and retirement account, deeds and mortgage statements, life insurance policies with cash values, annuity and long term care policy contracts, tax returns, Social Security and pension award letters, and any existing power of attorney or trust documents.
Say up front whether this is a crisis or a five year plan
Crisis planning starts when someone is already in a facility or about to be, and it uses annuities, promissory notes, exempt transfers and spend down. Pre planning with a five year runway can use an irrevocable trust or gifting. Naming which situation you are in stops the attorney from pitching the wrong toolkit.
Ask for the plan as written steps with owners and dates
Before you leave, you should have a document listing each action, who performs it, the deadline, and the target application month. If the attorney will only speak in generalities about protecting assets, that is your answer about how the engagement will go.
Bring the decision makers and check the power of attorney
Almost nothing can be executed if the agent under the power of attorney lacks explicit gifting and trust authority. Have the document reviewed in the first meeting, because a defective one may need to be replaced while the applicant still has capacity.
Costly Mistakes to Raise Before You Sign Anything
Do not confuse the gift tax exclusion with Medicaid rules
The annual gift tax exclusion is an IRS concept and has nothing to do with Medicaid. Gifts inside that limit are still fully reportable transfers and still generate penalty periods, and this single misunderstanding causes more denials than almost anything else.
Do not add a child to the deed or the bank account
Adding a name to a deed can be treated as a transfer, exposes the home to that child's creditors and divorce, and can wreck the stepped up basis at death. Joint accounts are often counted as fully available to the applicant, so the move usually creates two problems and solves none.
Do not let the nursing home business office run the application
Facility staff want the bill paid and have no duty to protect your assets or the community spouse's income. They will not pursue exemptions, appeals or a raised income allowance for you.
Do not wait for the hospital discharge planner to force the timing
Options narrow dramatically once someone is admitted for long term care. If a diagnosis has changed or care needs are climbing, book the consultation while there is still room to plan rather than react.
Warning Signs in the Attorney's Answers
- Quotes asset and income limits from memory without naming your state or the current year figures.
- Recommends a trust before asking about marital status, health, the deed and the source of your income.
- Promises approval or a specific outcome, which no one can guarantee since caseworkers and fair hearings decide.
- Cannot state the state penalty divisor, the community spouse resource allowance range or the home equity limit.
- Will not put the fee in writing, or cannot say whether an appeal is included.
- Treats a gift made three years ago as harmless, or seems unaware it must be disclosed.
- Has no process for annual recertification, so you are on your own after approval.
- Never mentions home and community based waiver options when the family wants to keep care at home.