Questions need answers, and this page helps answer some of the more frequent questions we’re asked.
Long Term Care Questions and Answers
What services are provided in Nursing Homes?
- We provide services and support needed to meet health and/or personal needs. This includes medical needs as well as basic personal care tasks called ADLs.
- Self care like bathing, dressing, and toileting
- Nursing Services
- Wellness Center
- Dietary Services
Who Qualifies for Nursing Home Services?
- Established criteria for both Medicaid and Medicare payer sources
- LNF/HNF levels of care paid by Medicaid – criteria established by the state’s Medicaid program, Medical Assistance Division (MAD)
How do I Pay for Nursing Home Services?
- Private pay (very expensive)
- Long Term Care Insurance Policy
What Resources are Available to Help?
- Medicaid – primary payer for long term care
- Medicare – Pays for skilled service stays such as rehabilitation, wound care, etc.
- Ombudsman – Protects a person’s rights and encourages others to uphold and respect those rights
What legal considerations are there?
- Healthcare decision making capability
- Financial decision making capability
- What happens when a person is unable to make their own decisions? A document called a Durable Power of Attorney can be created ahead of time
Medicaid & Long Term Care
Paying for long term care, whether in a nursing home or through care provided in the home, is a cause of concern for many seniors. Medicaid is a publicly funded program that can help with these costs, either through Institutionalized Care Medicaid for nursing home care or through the CoLTS C Waiver Program for home care. Medicaid is a needs based program, meaning recipients are required to pay for their own care as long as their income and assets exceed the eligibility guidelines. All Medicaid recipients meet the Medicaid financial eligibility requirements. This requires an examination of the individual’s and, if the applicant is married, the couple’s income and assets.
To qualify medically for Institutional Care Medicaid benefits, you must meet certain threshold requirements, including age (65 years old) or disability (including blindness), U.S. citizenship and New Mexico residency. You must require nursing home level care as certified by a physician. If you are younger than 65, your disability must be expected to last at least 12 months.
To qualify medically for the CoLTS C Waiver, you must be medically eligible for nursing home care but be able to receive services at home or in assisted living. The CoLTS C Waiver pays for specific services, but in most cases not for the whole cost of assisted living. Funding for this program is limited and there is usually a waiting list.
Person in Need of Long Term Care
If you are single, divorced, widowed or your spouse is also in a nursing home, you are eligible for Medicaid if you require long term care, and you meet both the income and assets requirements. Your monthly income must be less than about $2022 per month (the amount changes every year in January). You are allowed to keep $60 of your income in a personal needs account, with the rest of your monthly income paid directly to the nursing home for your care. Medicaid then pays the rest of your month cost.
You can have no more than $2,000 in “assets” such as life insurance cash value, bank accounts, IRAs, etc. You can also have no more than $1,500 in a burial account (or you may have a pre-paid burial agreement in any amount as long as it is pre-paid and irrevocable, meaning you cannot get your money back). You can have one vehicle worth any amount. If you own a home, you are not required to sell it as long as you state you intend to return home and you do not have over $750,000 in equity. After your death, the state can recover the costs paid by Medicaid for your care by making a claim against the assets in your estate.
The stay-at-home spouse of a person in need of long term care is able to keep at least half of the couple’s income (sometimes more than half). The stay-at-home spouse is also allowed to keep a significant portion of the couple’s community assets including the family home (with no limit on the amount of equity) and one vehicle of any value as long as the vehicle is needed for transportation to work or medical care. In addition to the home and vehicle, the stay-at-home spouse is allowed to keep a maximum of one half of the community assets up to about $109,560 (the amount changes every January). This protects the stay-at-home spouse financially when the other spouse requires long term care.
Transfer of Assets
Medicaid is a needs-based program that operates on the principle that people who can afford to pay for their own care should do so before requesting public funds. To be sure people are truly needy, Medicaid reviews an applicant’s financial records to see if any assets have been given away in the last 5 years. This “look back period” covers all types of transfers, whether directly to another individual or into a trust, except for transfers between spouses. Transfers between spouses must be completed within one year of the initial resource determination of Medicaid eligibility for the spouse requiring nursing home care.
If you have given away assets with the look back period, Medicaid requires those assets be returned to you so you can spend them on your care. If assets transferred cannot be returned to the recipient, a penalty will be assessed against the recipient. The penalty is based on the value of the asset transferred and begins running as of the date of application for Institutional Care Medicaid. During this penalty period, you will be responsible for paying the costs of your care.
For example, if nursing home care costs $6,000 per month, and you give away $60,000 of assets within 5 years of needing care, Medicaid won’t pay for your care for 10 months ($60,000 divided by $6,000 = 10).
Q. Am I required to sell everything I own before Medicaid will pay for long-term nursing home care?
A. You are allowed to keep some assets, even if you are single. If you are married, your spouse is able to keep many of your assets to live on. But if you sell or give away your assets in the 5 years before you need long-term care, you may be subject to penalties and be unable to receive Medicaid assistance for some period of time. You can spend your assets on your own needs in order to qualify for Medicaid, but you can’t give away your assets or save them to pass on to your children after you die.
Q. Will I have to sell my home to meet the eligibility requirements for Medicaid?
A. In most cases, your home will not be considered an asset which must be sold, provided you state that you intend to return home. For most people, it’s better not to sell the home because the cash from the sale would have to be used to pay for long-term care before Medicaid would assist. Medicaid will only consider your home an asset if you are single and have $750,000 or more in equity in the home, even if you intend to return home. Additionally, the state may recover reimbursement of the amount Medicaid paid for your care under the Medicaid Estate Recovery Act. This recovery may occur when your estate is probated.
Q. What about transferring my home to my children or adding their name to the title?
A. Both of these are considered giving away an interest in your assets and will result in penalties that will delay your access to Medicaid funds. Also, once someone else owns your property in whole or in part, you can’t make them give it back.
Q. What if my income is too high for Medicaid, but I can’t afford the whole cost of long-term care?
A. If your income is too high, but you meet the asset test, you may be able to consult a lawyer to prepare an income diversion trust that sets aside your excess income and makes you eligible for Medicaid funding. After you die, the excess income accumulated in the trust goes to reimburse Medicaid for your care.
Power of Attorney
What is a Power of Attorney?
You, the principal, are giving someone else, your agent or attorney-in-fact, the power to act on your behalf.
Why do I need to give a Power of Attorney?
The power of attorney (POA) is a very important document in financial planning. If you become too ill to handle your affairs, you probably will need someone to make decisions for you. You need to think carefully about who you would want to make the decisions for your financial needs in the event you are unable to make them yourself. Without a POA, if you become incapacitated, your family may need to apply to the court for guardianship or conservatorship, which can be expensive and time-consuming.
Can anyone give a POA?
Anyone, 18 years of age or older, who understands both what they are doing and the contents of the document they are signing can give a POA.
Who should I choose as my agent?
A POA is a very powerful document. The person you choose should be someone you trust implicitly. Your agent should be someone you trust to act in your interests instead of his or her own interest, and who will try to make the same decisions you would have made for yourself. You can give POA to a relative, a friend, or you can hire a bank or corporation, as long as you choose someone who is trustworthy.
How can I be sure my agent follows my wishes?
When you give someone a POA you should talk to them about what you want them to do. You should inform them about what you want them to do. You should inform them about your bills and bank accounts, for example, and make sure they know where you keep your records and important papers.
Can my agent use my money for personal gain?
The person who is your attorney-in-fact has a fiduciary duty to act in your interest and try to do what you would do for yourself if you were able. Third parties will presume the person is acting on your behalf. There have been agents who have used POA for their own benefit, so you should choose only someone you trust.
How can I hold my agent accountable?
You can ask your attorney-in-fact to provide an accounting. This means that the person acting as your agent provides a record of all money spent. The accounting can be made annually, semi-annually, quarterly, or monthly. You should specify in the POA document how often and to whom your agent must provide an accounting.
What can I do if someone is trying to force me to sign a POA?
You should not sign a POA even to a relative if you do not want to. Call your lawyer or Lawyer Referral for the Elderly if someone tries to force you to sign any documents you do not want to sign.
What powers should I grant to my agent?
A power of attorney can be specific or it can be general. You may want to give powers, such as health decisions using and Advance Health Care Directive, to one person and give a financial POA to someone else to make financial decisions. You should make the POA specific if your agent is going to transfer real estate, pay taxes, or purchase and sell stocks and bonds. If you want your POA to affect real estate, you need to record it with the county clerk in the county where the real estate is.
How long does a POA stay in effect?
A POA can be for any specific period of time, or it can be indefinite until revoked. It can be springing, which means that it will only become effective if you become incapacitated and will not be effective until then. In order for the power to remain effective after you become incapacitated, it must say so in the document.
What is a durable Power of Attorney?
A durable power of attorney states in the document that it remains in effect even after the principal becomes incapacitated. This is important, because without the durable clause, the power of attorney will be void just when you need it most.
Can my agent use the POA after I die?
Absolutely not. The power ends upon death of the principal. If your agent knowingly uses the POA after your death, he or she is committing fraud.
How do I revoke a POA?
You can revoke a POA at any time as long as you are of sound mind. One way to revoke a POA is to tear up the document and all copies. Otherwise, the revocation must be in writing and signed in the presence of a notary. If the original POA was recorded, then a revocation must also be recorded. A copy of the revocation should be given to banks, stockbrokers, your doctor, or anyone else who might be relying on the POA.
Is my POA made in another state good here in New Mexico?
Probably. However, it is wise to update your POA because requirements vary from state to state.
Would my spouse need a POA?
A husband or wife will need a POA to transfer property held jointly. A transfer may be necessary if one spouse enters a nursing home under Institutional Care Medicaid. The at-home spouse may want to transfer title to the family home into his or her name to avoid losing benefits.
Do I need a lawyer to draw up a POA?
Not necessarily. There is a statutory form that has been approved by the State Legislature. The POA must be still be signed in the presence of a notary. However, you should proceed with caution because of POA is such and important document. Also, a lawyer can ask about your specific needs and include provisions in the POA to fit those needs. LREP recommends that you consult an attorney before signing a POA.
Do I need a witness?
No. New Mexico law does not require a POA to be witnessed, but witnesses may strengthen the validity of the document if it is challenged. As stated above, the POA must be signed in the presence of a notary public.
A living will allows you to document your wishes concerning medical treatments at the end of life. Before your living will can guide medical decision-making two physicians must certify:
- You are unable to make medical decisions,
- You are in the medical condition specified in the state’s living will law (such as “terminal illness” or “permanent unconsciousness”),
- Other requirements also may apply, depending upon the state.
A medical power of attorney (or healthcare proxy) allows you to appoint a person you trust as your healthcare agent (or surrogate decision maker), who is authorized to make medical decisions on your behalf.
Before a medical power of attorney goes into effect a person’s physician must conclude that they are unable to make their own medical decisions. In addition: If a person regains the ability to make decisions, the agent cannot continue to act on the person’s behalf.
Many states have additional requirements that apply only to decisions about life-sustaining medical treatments. For example, before your agent can refuse a life-sustaining treatment on your behalf, a second physician may have to confirm your doctor’s assessment that you are incapable of making treatment decisions.
What Else Do I Need to Know?
Advance directives are legally valid throughout the United States. While you do not need a lawyer to fill out an advance directive, your advance directive becomes legally valid as soon as you sign them in front of the required witnesses. The laws governing advance directives vary from state to state, so it is important to complete and sign advance directives that comply with your state’s law. Also, advance directives can have different titles in different states.
Emergency medical technicians cannot honor living wills or medical powers of attorney. Once emergency personnel have been called, they must do what is necessary to stabilize a person for transfer to a hospital, both from accident sites and from a home or other facility. After a physician fully evaluates the person’s condition and determines the underlying conditions, advance directives can be implemented.
One state’s advance directive does not always work in another state. Some states do honor advance directives from another state; others will honor out-of-state advance directives as long as they are similar to the state’s own law; and some states do not have an answer to this question. The best solution is if you spend a significant amount
of time in more than one state, you should complete the advance directives for all the states you spend a significant amount of time in. Advance directives do not expire. An advance directive remains in effect until you change it. If you complete a new advance directive, it invalidates the previous one.
You should review your advance directives periodically to ensure that they still reflect your wishes. If you want to change anything in an advance directive once you have completed it, you should complete a whole new document.
As part of the admission process, MCMC staff will ask you and document in your record whether you have executed an advanced directive. If an advanced directive has been executed MCMC will need to obtain a copy of the advanced directive and make it part of your medical record.
Frequently Asked Questions on Advanced Directive
Q. What healthcare decisions can my agent or surrogate make?
A. Unless you limit your agent’s authority, your agent has the right to consent or refuse consent to medical care, decide who treats you and where the treatment takes place, and approve or disapprove tests and orders not to resuscitate (DNRs).
Q. What is a DNR?
A. This is a Do Not Resuscitate order that your doctor writes with your consent (or your agent’s consent if you lack capacity). This order instructs emergency medical technicians not to resuscitate you if you stop breathing.
Q. When will my instructions for health care go into effect?
A. When you are unable to make or communicate decisions, and either you have an incurable or irreversible condition that will result in your death within a relatively short time or you become unconscious and will not regain consciousness.
Q. Can my agent or surrogate have access to my medical records?
A. Yes. Your agent or surrogate has the same rights as you do to request, receive, examine, copy and consent to the disclosure of healthcare information.
Q. If I appoint someone to be my agent, will I lose my right to make my own healthcare decisions?
A. No. As long as you have the physical and mental capacity to make your own decisions, you are entitled to do so. Generally, an agent acts only when the principal is incapacitated.
Q. Can I name anyone I want to be my agent?
A. You can name any adult you choose. You should be sure the person you name is someone you trust to carry out your wishes. It should also be someone who is likely to be available when needed.
Q. How does the law prioritize surrogate decision-makers?
A. The law prioritizes surrogate decision-makers according to their relationship with you. The priority of decision makers is as follows:
- The spouse;
- An individual who has been in a long term relationship with the patient similar to the commitment of a spouse and where the individual and the patient consider themselves to be responsible for each other;
- An adult child;
- A parent;
- An adult brother or sister;
- A grandparent.
Q. What if none of these people is available?
A. An adult who has exhibited special care and concern for you, who is familiar with your personal values and who is reasonably available may act as your surrogate.