Spousal Protections For Long-Term Care

The scariest sentence we hear from families facing a spouse’s nursing home placement is simple: “We’re going to lose everything.” That fear is understandable, but it often ignores the spousal protections built into long-term care Medicaid rules. We sit down to map the real picture of how benefits can work when one spouse becomes the “applicant spouse” and the other remains the “community spouse” trying to keep the household afloat.

We start with the foundation that makes every plan possible: legal authority. Being married does not automatically mean you can sign contracts, manage accounts, or make the moves needed to qualify for long-term care benefits. We explain why a healthcare power of attorney and a general durable power of attorney matter so much, from getting the right level-of-care paperwork to executing facility admissions documents. We also dig into a surprise for many couples: even if you share a bank account, you cannot simply access or control assets like an IRA, 401(k), or life insurance policy without the right authority, and real estate can require careful handling too.

Next we break down the money rules that decide whether the healthy spouse can keep paying the bills. We explain patient liability, how Medicaid covers the gap between income and the cost of care, and how the Minimum Monthly Maintenance Needs Allowance (MMMNA) may allow shifting income to the community spouse up to an allowed limit. We also touch on asset protection planning, including the Community Spouse Resource Allowance (CSRA) and why working with an elder law attorney who actually handles Medicaid benefits can save time, stress, and hard-earned assets.

If this helped you, subscribe, share the episode with a friend caring for a spouse, and leave a review so more families can find practical guidance when long-term care decisions hit fast.

Transcript

Greg McIntyre 0:10

Spousal protections and long-term care. Sometimes people think, oh, my spouse is going to have to go to long-term care. We're going to lose everything. That's not necessarily the case. There are many spousal protections in the benefits rules for the spouse that is not going to care. I'm here with and joined by attorney, estate planning and elder law attorney, Brittany Begley, my law partner. Hey, Brenton.

Brenton Begley 0:37

Hey, Greg.

Powers Of Attorney Come First

Greg McIntyre 0:39

So we're going to talk about that this morning. First thing we want to start with is power of attorney and how important that is and why that matters. Just because you're married, doesn't mean you can do everything for your spouse, especially in qualifying for a benefit. Brenton, why is the general durable and the healthcare power of attorney so important to a spouse trying to help another spouse get into a long-term care facility and qualify for a benefit while not losing their own assets?

Accessing Retirement And Real Estate

Brenton Begley 1:10

Well, we see the importance of the powers of attorney, both the healthcare and general durable power of attorney firsthand when we're trying to assist individuals in applying, qualifying, and getting approved for benefits to pay for long-term care. One of the common scenarios that we find is you'll have a couple and one needs care, one is the applicant spouse, and one is the quote unquote healthy spouse. And the healthy spouse is trying, you know, as you might imagine, to get their loved one, their spouse, care, and also trying to protect, preserve the assets as best as possible. And so to place that individual in the right level of care, um, to be able to get them evaluated for the level of care that they need and get that evaluation with called an FL2, which actually gets you into the facility to make sure they can deal with the facility. They need health care power of attorney. And general durable power of attorney is incredibly important to be able to execute the contracts to get into the facility. But more importantly, the general durable power of attorney is what gives the spouse access to some of the things that they may not have access to without power of attorney. You know, you can put your spouse on your bank account and you both may be able to access the bank account, but I cannot put my spouse as an authorized user on my IRA, my 401k, my life insurance policy, all of which may need to be accessed to help shift it, protect it for the purposes of qualifying for long-term care and protecting the assets in the event that I do receive long-term care or incur substantial medical debt. So can't stress enough how important it is to have that power of attorney in place to be able to access those assets even on behalf of your spouse.

Income Rules And The MMMNA

Greg McIntyre 2:55

Oh, including real estate, including real estate transfers, right? And and deep protections on real estate. Hey, what about, you know, built in the benefits rules for the spouse? There's a couple. They treat assets and income differently. Let's say, you know, a spouse, a wife is married to a husband, the husband needs care, the husband's Social Security is three times what hers is. They are really using both their social securities to help pay for the household, you know, to pay the bills, day-to-day expenses. Do the benefits rules for, say, long-term care Medicaid, for skilled nursing care, nursing home care allow the healthy spouse, the community spouse, to keep some of that income of the spouse that's going into the care for the maintenance of the household?

Brenton Begley 3:41

Yeah, there's uh there's something that's referred to colloquially as the memories. It's the minimum monthly needs allowance for the healthy spouse. So you have the applicant spouse going into care, and if they have income, uh fixed income that exceeds that of the healthy spouse, you may be able to shift some of that income instead of using that money to pay down um, you know, the the patient's liability, right? Going into care. So a lot of people, you know, don't really know the specifics of how this works, but if I were to go into long-term care, my income um is my my liability that I must pay to the facility um before Medicaid kicks in and pays the difference between my income and the cost of care. And you know, nine times out of ten, you're gonna have the income quite a bit lower than the cost of care. So Medicaid, that benefit, pays the difference. So if there's a spouse in the mix, we want to make sure to be able to divert as much of that income from the applicant spouse to the healthy spouse to make sure that they can cover monthly expenses and live off of the, you know, as much of the joint income as possible. So um there is a maximum that can be shifted um for the healthy spouse. Uh so a maximum of currently about$3,500 in total can be shifted to the healthy spouse per month. And the way that this works is that it's not amount of$3,500. It's if the let's say the spouse is um healthy spouse only makes a thousand dollars a month Social Security. Let's say that the um applicant spouse makes five thousand dollars a month, twenty five hundred of the applicant spouse of half their income can be diverted to the healthy spouse bringing their income up to a total of thirty five hundred dollars a month.

Greg McIntyre 5:33

Uh and then lastly, though, there's assets. You know, sometimes we have to do some movement of assets under the rules, even within the look back period that is allowed. So there's the CSRA, which is right at$160,000 that a healthy spouse can keep. Everything over that, we have strategies under the rules. And that's why it's really important to consult an experienced estate planning and elder law attorney, especially. All elder law attorneys, in my experience, don't handle benefits. Okay. So an elder law attorney that handles benefits and is experienced in that, so that they do know the rules in and out and know the strategies and ways that long-term care Medicaid allows for movement of assets, both real estate and financial assets, retirement and other liquid assets to the healthy spouse to get the spouse that needs care, the applicant, under their reserve amount, their resource amount, the amount that's allowed by long-term care Medicaid to qualify to go into the facility. And we are very good at that. There's a lot of details and specifics between behind the asset part, different strategies and plans, which on the back end are very complex, but we present those in a very simple, easily digestible way that the Department of Health and Human Services, Local Social Services, and you will understand. So if you need help with spousal protections, qualification for long-term care benefits, for nursing home, or assisted living care, we have an entire department that handles that. Our attorneys are very knowledgeable in those strategies and those rules. And Brenton, thank you so much for helping me explain this today and for being just a very knowledgeable attorney yourself in that area.

Brenton Begley 7:40

Absolutely. You know, a lot of people um uh don't understand how much can be done to help qualify and protect those assets, and that's why we dedicated our time to get this message out and a good portion of our firm and what we do every day to help people protect those assets and qualify for care. So thank you.

Free Consult Offer And Wrap-Up

Greg McIntyre 8:01

Absolutely thank you, Brenton. And if you and your family or you or your loved ones need to access us, to ask questions, and to meet with an estate planning and elderly law attorney to discuss these issues and look at strategies and how to hire an attorney to handle these things for you to save your hard earned money and real estate. We would offer a free consultation. Take advantage of that by calling one eight eight eight nine nine nine sixty six hundred or schedule directly on our calendars online at mcelderlaw.com slash scheduling. Thank you.