Elder Law

My Paper, Discussing the Impact of Financial Exploitation on Medicaid Eligibility, Chosen as Lead Article in The ElderLaw Report

By dvanar

It is not uncommon for an elderly or disabled person to entrust his or her finances to a third party. For example, an elder may execute a power of attorney as a simple estate planning tool in order to ensure that his or her affairs are properly handled in the event that the elder is unable to act due to illness, injury, incapacity or other cause. In other cases, an elder who is becoming overwhelmed by day-to-day financial tasks may simply “hand over the checkbook” to a relative or a trusted friend. But what happens when the person to whom the elder’s affairs are entrusted misuses that authority? As the elder population in the United States continues to increase dramatically, the financial exploitation of the elderly continues to be an increasingly serious problem. But whether elder financial exploitation involves common theft by an outsider or the improper use of a power of attorney by a family member, that financial abuse presents a myriad of issues. Adding to the dilemma of financial exploitation is the issue of Medicaid eligibility, and the impact of the exploitation on the victim’s eligibility for necessary public benefits. In particular, when a third party makes improper transfers of the elder’s property without the elder’s knowledge or consent, will those improper transfers negatively affect the elder’s eligibility for Medicaid? This was the issue I explored in a paper I wrote which was recently published by The ElderLaw Report, the premier newsletter covering elder law issues for legal professionals. In the paper, I researched laws and cases across the country to examine how courts determined whether improper, unauthorized  transfers negatively affected the elder’s eligibility for Medicaid. The results of the research were consistently interesting. Based on the findings in the paper, I concluded that:

Medicaid eligibility determinations involving financial exploitation of an applicant / victim will likely involve establishing the following elements during the application or appeal process: (1) the applicant’s knowledge of, or consent to, the transfer(s); (2) the applicant’s relationship to the wrongdoer; (3) the applicant’s competency at the time of the transfer(s); and, (4) the steps taken by or on behalf of the applicant to recoup the transferred funds. Although eligibility determinations will be fact-sensitive, the foregoing legal authority may be used to advocate in favor of eligibility (or in favor of granting a hardship exception, in the event of a Medicaid denial) on behalf of an elderly victim of financial wrongdoing.

My article in the May 2009 Edition of The ElderLaw Report can be found here - the-elderlaw-report-may-2009.

Full post as published by Law Office of Donald D. Vanarelli Blog on May 14, 2009 (boomark / email).