Focus on NY Estate Planning


The NY Medicaid program is about to undergo the most significant changes to the program since 2006.  Medicaid is the program in New York that, for the elderly, blind and disabled, provides benefits for programs not covered by Medicare.  These benefits finance care for full benefits, in a nursing facility, or in the community with home care services.  Home care services under the Medicaid program will provide up to seven days a week, 24 hours a day home attendant services for those elderly, blind or disabled New Yorkers who meet the financial eligibility criteria.  Without private long-term care insurance benefits, or without Medicaid benefits, the costs of inpatient nursing home care can be in excess of $15,000.00 per month in NYC and the 5 boroughs, and the cost of 24-hour home care can be over $10,000.00 per month.  It is easy to see how a prolonged illness can deplete one’s hard earned savings.

During the COVID 19 pandemic, the Governor with the NYS Legislature made significant changes to New York’s Medicaid eligibility criteria making it much more difficult for New Yorkers to be eligible for Medicaid benefits to finance the care they need.  This will have the most significant impact on the elderly in New York who require home attendant services.



To be eligible to apply for full benefits for nursing home care, as well as for community benefits for home care services, an individual is eligible to apply for coverage if her financial assets total no more than $15,750.00.  Beyond that asset limit of $15,750.00, eligibility criteria for the full benefits program and the community benefits program differ, as follows.

For full nursing home coverage, in addition to the asset limit of $15,750.00, there is the requirement for a five year financial audit of all accounts owned by the applicant (even if jointly owned) and explanations for all transfers in an out of the accounts must be documented and proved that the transfers were not gifts, or transfers for no return (fair market value) compensation.(this is often referred to as the LOOKBACK period).  If there were such gifts or transfers (known as uncompensated transfers) there will be a period of time that the individual is ineligible to apply for Medicaid to finance nursing home coverage for a certain period of time, determined by the value of the uncompensated transfer and to whom the transfer was made.  In addition to the asset audit, some or all the applicant’s income may be payable to the facility, in addition to the payment the facility receives from Medicaid. 

For community Medicaid with home care services the asset limit is the same, the applicant can have no more than $15,750.00 when she applies for community Medicaid.  Unlike full nursing home coverage, there is NO LOOKBACK or requirement to provide five years’ worth of financial documentation.  What this means is that UNDER THE CURRENT GUIDELINES, an individual requiring home attendant services can transfer assets our of her name (to a trust or otherwise) any given month, to below $15,750.00, and be eligible to apply for community Medicaid for home care services the very next month.  As for income, the individual receiving community Medicaid benefits has the option to preserve income to be used for household expenses without having to pay any towards her care, unlike the nursing home Medicaid applicant.


WHAT WILL CHANGE ON OCTOBER 1st (or very shortly thereafter):

The new changes will affect the community Medicaid program.  Home care services under the community Medicaid program provide home attendant services for up to 24 hours a day, 7 days a week, as stated previously.  This results in many of our disabled seniors being able to remain at home with these services, and avoid having to be placed in a facility- away from family, and as we have unfortunately experienced recently, exposed to illnesses they might otherwise not have been exposed to by receiving care at home. 

As detailed above there is currently no lookback at financials and no penalty for asset transfers for community Medicaid eligibility.  What the law will change is that now in order to be eligible to apply for community Medicaid there will be a 30 month (2 ½ year) lookback at all financial transactions, with a penalty period applied based on the value of the transfers within the 30 months. 


These changes will affect those who are in the need of some services now or will be in the near and distant future.  If you are of an age that you can anticipate needing some assistance, you should visit an elder law attorney for a consultation to see what options might be available to you to protect your assets.

There are limited options for transferring assets without having to wait the full 30 months for benefits, depending on your family circumstances, and marital status.  Once the new regulations begin – in a few short months, we, as elder law attorneys, are familiar with planning available to preserve about half or more of your assets for immediate eligibility. 

You need to have your estate planning documents in place and updated regularly.  If you become disabled, you may need to have someone assist you – without a Power of Attorney your loved ones would need to initiate a court proceeding to obtain Guardianship to help you obtain benefits to finance your care. 

The best plan to preserve most or all your assets, is to have plans in place ahead of the effective date of the changes to the regulations.  We anticipate that there will be many applications filed before the effective date, and advise that if you are planning to apply, to do so as soon as possible. 

This article is provided for informational purposes. For specific legal advice you should consult privately with an attorney.  Ms. Brady is a partner at the firm Brady & Bader LLP, she can be reached at 1-718-945-7777.