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St. Petersburg Medicaid Planning Lawyers and Elder Law Attorneys in Florida

Medicaid Planning / Asset Protection

Paying for Long-Term Care in a Skilled Nursing Home Facility  

Long term care, also called custodial care, is the living arrangement that includes nursing home care, assisted living facility care, and some at home care circumstances. Medicare does not pay for nursing home care except up to 100 days that is available from
Medicare for rehabilitative skilled care that may be provided in the same type nursing home facility.  In Florida, the cost of nursing home care typically is between $5,000 and $6,000 per month, or more than $75,000 a year.  The question many families with elderly members face is how to pay for nursing home costs in Florida.  

However, the costs of, and paying for long term care, are but one of the issues involved in the selection of a skilled nursing facility in Florida for your loved one.

Long term care in Florida nursing homes is paid for in one, or a combination, of three ways:

  • Long-term care insurance
  • Private Funds
  • The Florida Medicaid Institutional Care Program (ICP)

Long Term Care Insurance

If you have assets worth protecting, are relatively young and healthy enough to qualify, and can afford the premiums, long term care insurance may be your best option. If your long term care insurance policy qualifies for the Florida Long Term Care Partnership, then you have the legal right to protect from nursing home costs some of your assets with a total value equal to the long term care insurance benefits.  For instance, if your long term care policy qualifies for participation in the Florida Long Term Care Partnership and provides $100 per day for five years, you can set aside approximately $180,000 of assets for your family that you otherwise would be required to spend on nursing home care.  The Florida Long Term Care Partnership is one of the most effective asset protection devices available to the person who can qualify for long term care insurance.

Using Your Own Private Funds


Without long term care insurance, it will be necessary for you to use your own resources to pay for nursing home costs or apply and qualify for Florida Medicaid benefits to pay for nursing home care. A Florida Medicaid planning attorney can help you  develop a properly designed Medicaid spend down plan that may allow you to protect some of the elder person's assets for family members, and still allow the elder person to qualify for Medicaid benefits to pay the costs of the nursing home.

Medicaid Benefits to Pay for Nursing Home Costs


Medicaid is a federally funded health care program designed for those who are unable to afford medical care and nursing home costs. One of the components of Medicaid benefits is the Institutional Care Program (ICP). There are other less well known programs but the Institutional Care Program is the one that pays for skilled nursing home care for eligible persons. The Florida Medicaid application process is administered through the Florida Department of Children & Families


Nursing home expenses currently are typically more than $80,000 per year. The average stay for a nursing home resident is over two years (Alzheimer's and dementia are usually much longer).  Only after a nursing home resident has spent down his or her assets to the allowable maximum can one become eligible for Medicaid benefits to pay for nursing home care.

"Medicaid spend down planning" is the process through which the
Florida elder law attorney and Medicaid planning lawyer at the Coleman Law Firm assists our clients in preparing their financial affairs so that they can legally qualify for Medicaid benefits to pay for nursing home costs, while preserving and protecting assets for enhancing the lives of the nursing home resident during the period of time they are in the nursing home, and preserving assets for family members and loved ones who are devoted to the care of the elderly person confined to the skilled nursing facility.

If you are a concerned relative, loved one, or friend of a person who is resident in a nursing home, and you want to legally protect some of that person's assets from unnecessary payment of nursing home costs, then you should
contact a Florida elder law attorney and Medicaid planning lawyer with The Coleman Law Firm to explore how we can help you achieve that objective legally.

The information that follows will provide some information about the Medicaid planning process and the rules and regulations governing a nursing home resident's eligibility for Medicaid benefits.  For additional information about nursing homes in Florida, the Florida Agency for Healthcare Administration provides a
nursing home guide that rates all of the nursing homes that operate in the state.




Many courts have commented that the Federal Medicaid Laws are the most complicated laws that have ever been put into effect by Congress with the exception of the Internal Revenue Code.  In addition, Florida has many special laws, rules, regulations and interpretations that increase the confusion about how to qualify for Medicaid nursing home benefits.  Proper planning with a Florida elder law attorney is absolutely essential to obtain Medicaid benefits.

Achieving Medicaid eligibility can be an overwhelming challenge for anyone, even for a 
Florida elder law attorney and Medicaid planning lawyer who practices in this area of the law every day!  Yet, a knowledgeable Florida elder law attorney can provide proper guidance when navigating this area.  With that help the benefits to be derived from Medicaid eligibility can be substantial.

In Florida, there are a number of different
Medicaid programs that are administered by the Florida Department of Children and Families, including a long-term care assistance program for the financially needy.  This program is called the "Institutional Care Program" and is referred to as the ICP Medicaid benefits program. If certain eligibility criteria are met, which may be achieved through proper Medicaid spenddown planning, Florida Medicaid can absorb most of the costs, if not the entire cost, of skilled nursing home care that exceeds the elder person's income, as well as providing for most of the medical needs of the eligible person. The amount of the elder person's income that must be paid to the skilled nursing facility depends on the Florida nursing home resident's marital status and the needs of the spouse who is not in the nursing home (the "community spouse").


In Medicaid terminology, when there is a married couple, the spouse who is residing in the skilled nursing home is called the Institutional Spouse.   The spouse who continues to live someplace other than the skilled nursing facility is called the Community Spouse.

A married couple's assets are considered separately for determining Medicaid eligibility. It does not matter if the assets are held jointly or separately in each spouse's name. Some assets can be specifically exempt for the Community Spouse, such as a home and its contents, a vehicle, and a prepaid funeral plan that meets certain criteria specified by Florida law.  Proper Medicaid planning may help an individual or a couple meet those criteria while preserving significant assets to assist the community spouse maintain his or her financial security.

When the Institutional Spouse goes into the skilled nursing home, that person's "countable" assets must be less than $2,000, but the community spouse is entitled to retain significantly more assets. That amount changes each January and you should consult a knowledge Medicaid planning attorney or lawyer to confirm the amount of the community's spouse's allowable resources at any given time.  For the year 2014, the amount of "countable" assets the spouse not living in the nursing home can retain without affecting the eligibility for Medicaid benefits to pay for the cost of the nursing home for the spouse living there is $117,240.

The objective of Medicaid spenddown planning is to rearrange one's financial affairs and the structure of their assets, in a manner that is legal and does not constitute Medicaid fraud, so that the "countable" assets fall within the limits required to be eligible to receive Medicaid benefits to pay for nursing home costs, without using those assets in payments to the nursing home.  The objective is achieved by using the provisions of the law that allow certain transactions that can result in protecting signficiant amounts of assets for the future use by the elderly person confined to the nursing home, that person's spouse, or the other family members who are assisting with the care of the elderly person.

The Medicaid laws, regulations, interpretations and applications are complicated. The person who is not familiar with the intricacies of Medicaid, is unable to determine what should be done to ensure eligibility for benefits, and still preserve assets for the family. Many people believe their only option is to spend their life savings before they will be eligible to obtain Medicaid benefits. But, if couples avail themselves of advice from an experienced Florida Medicaid planning attorney who works in this area of the law, they will find that it may be possible to preserve substantial assets and resources.  Additionally, a Florida resident can qualify for Medicaid benefits even if their income is above the allowable income limits through the use of a qualified income trust through the use of provisions of the Medicaid law allowing the use of qualified income trusts.

Although the basic Medicaid rules allow a Community Spouse to protect a certain amount of countable resources, this is, in many cases, a fraction of what could have been preserved for the Community Spouse, or the family, if proper Medicaid spend down planning strategies were followed.

A knowledgeable and experienced Florida elder law attorney frequently can have the protected resource amount for the Community Spouse increased to a level that would be far above what someone will obtain merely relying on the Department of Children and Families, simply because the experienced elder law attorney has an intimate knowledge of the Florida Medicaid laws, and how to protect the elder person's legal rights to avoid creating financial hardship, or spousal impoverishment, with proper Medicaid planning.


There are several money saving Medicaid planning strategies that are available and should be considered by each family who is facing the reality of a skilled nursing facility for one of its family members. In order to develop the legal strategy that is most beneficial for a particular family, a thorough review of the individual's or couple's financial and family circumstances must first be completed.   Only after carefully reviewing all of the financial and family circumstances can the proper legal options be identified and evaluated, and appropriate recommendations be made to the family.

For Florida Medicaid planning and advice to be appropriate the needed relevant facts about the couple include:

  • Age, medical condition, mental condition, lifestyle, prognosis, and desires of each spouse
  • All of the couple's assets, ownership of each asset, values and tax cost basis.
  • All income sources, amounts and survivorship rights.
  • Full understanding of each spouse's family members, or other persons who are involved with the family.
  • Potential for veteran's benefits, and much more.


There are three separate criteria that must be met by the elder person applying for Medicaid benefits to pay for nursing home costs.  Those three criteria are:

             1.    Medical Necessity
             2.    Income Test
             3.    Asset Test

Basic and Medical Necessity

This includes criteria such as medical necessity, age, citizenship, and residency requirements. To obtain nursing home Medicaid benefits, a person must be at least 65 years of age, blind, or disabled, and have the medical necessity to be in a nursing home.

For someone medically qualified for nursing home care but who is still at home, Florida also has certain pilot programs such as the Diversion Program and the Alzheimer's Initiative, which provide certain specific services.  A qualified and experienced Florida elder law attorney can assist you in determining whether your elderly family member might qualify for such Medicaid benefits.

Income Test

Florida is an Income Cap state, which means there is an upper income limit for Medicaid eligibility.  A person's total gross income includes the received from Social Security, pensions, IRAs and all other forms of income. The upper income limit typically goes up by a few dollars each year. In many cases where an elderly person's income exceeds the upper limit, a "Qualified Income Trust" (also known as a "Miller Trust" or a "QIT" or an "income only trust") can be used to legally solve the problem of too much income. An experienced Florida elder law attorney can assist you in the preparation and proper implementation of a Qualified Income Trust.

Following the detailed requirements for administering a qualified income trust is important for maintaining Medicaid eligibility for the elderly person after it is first obtained.  Your Medicaid planning elder law attorney should provide you with detailed and specific direction for the proper administration of your qualified income trust.

Income for Medicaid eligibility purposes is gross income. This means that all deductions are added back into the income before one can determine the total amount of income for Medicaid eligibility purposes, and is another example of why proper Medicaid planning is so important for each involved individual, and how a qualified income trust may be necessary. 

Asset Test

The Florida nursing home resident must have less than $2,000 of countable assets. Some assets are exempt. Exempt assets may include a home and its contents, a vehicle, prepaid funerals, and cemetery lots. However, it is important to evaluate each asset carefully before one can know if the asset is countable or exempt. Such determinations require the expertise that an experienced Florida elder law attorney can provide you, through proper Medicaid planning.

Examples of countable assets are cash in the bank, cash, stocks, annuities, bonds, land, minerals, non homestead property, notes receivable, boats, and certain extra vehicles. Countable assets must be less than $2,000.  Often there are legal alternatives available to remove assets from the category of "countable" assets so that they can be preserved for family use.  Included among the options that are often available are personal care contracts, certain types of rental real estate, and other alternatives that can save a family significants sums from nursing home expenses.

Even if a Medicaid spenddown plan is part of the plan to obtain Medicaid benefits, a knowledgeable Florida elder law attorney who is experienced in Medicaid planning is able to counsel clients about options that may be financially advantageous to the Medicaid benefits applicant and to the other members of the family.

Medicaid FAQs

The following Florida Medicaid planning frequently asked questions and answers should provide some insight into how a Florida elder law attorney can assist you and your family with appropriate asset protection through effective Medicaid planning.

1.    My children's names are on my checking and savings accounts and my CDs.  Does that make them exempt or partially exempt for Medicaid benefit eligibility purposes?

Generally, no. Those are your assets and countable for Medicaid eligibility purposes even though the children have access to the funds.

2.    I put my assets in a revocable living Trust a few years ago. Does that protect the assets from Medicaid spenddown?

Most often not. If the Trust is a revocable trust, or if the assets can be used for your benefit, then the assets in the trust are available to pay the nursing home, or for your home care costs.  However, if your trust is an irrevocable Medicaid qualifying income only trust, the assets owned by that trust may not be included in the countable assets that must be spent down before qualifying for Medicaid benefits to pay for nursing home costs.

3.    Why can't I just give my assets to my children and then apply for Medicaid benefits to pay for my nursing home costs?

Federal and Florida Medicaid rules do not allow you to give away money within a certain time period called the lookback period. If you give away money within that period you could make yourself ineligible for Medicaid for an extended period of time.  Starting in 2011, that lookback period is 5 years for all transfers that are made by the person applying for Medicaid benefits where there is no fair value consideration provided for the transfer.

4.    Can I give away my assets or my money without penalty?

No. Gifting for Medicaid purposes should not be confused with gifting for federal gift and estate tax purposes. A gift, or other transfer without receiving fair consideration in return, is presumed to be for the purpose of qualifying for Medicaid benefits.  While you may rebut that presumption, it is difficult and the burden is on you to establish that the purpose of the transfer was not to qualify for Medicaid benefits.

5.    What about just putting the money into a Medicaid Qualified Annuity?

People finding themselves in a situation where a family member is going into the nursing home, are sometimes led to believe that the purchase of an annuity is the best or even the only way out. This is rarely the case.  In fact, annuities in Florida Medicaid planning are useful in only a small percentage of cases where both spouses are still alive and the annuity is structured to provide income for the community spouse. Often, with the aid of a Florida elder law attorney or lawyer. there are other legal alternatives that are more advantageous to the applicant for Medicaid benefits for nursing home care, or the other family members.

A Medicaid compliant annuity, usually is a low-yielding investment, and under the Medicaid law the remainder interest in the annuity must be paid to the State of Florida Medicaid recovery.  There are some instances where the use of a Medicaid compliant annuity may be appropriate.  A review of the applicable facts and proper Medicaid planning will help determine whether such an annuity is advantageous in a given person's situation.

Federal and Florida Medicaid laws, rules and interpretations are constantly changing. Before you rely upon any Medicaid information or advice, you should make sure your Florida Elder Law and Medicaid planning attorney or lawyer knows all the facts of your particular situation and the most current Federal and Florida Medicaid laws, rules and interpretations.

You also should be aware that each state implements the Federal Medicaid program in slightly different ways, with different rules and eligibility requirements.  Florida Medicaid is different in several respects to other states.  For instance, in Florida, the
home is considered an exempt asset.  As an exempt or non-countable asset, it is not necessary for the Florida Medicaid benefits recipient to sell the home that is the primary personal residence as a prerequisite to qualifying for Medicaid benefits.  The homestead can be preserved in Florida, though there are various rules that do apply to how the home is used during periods of nursing home confinement.  In most other states, it is necessary to sell the homestead and spend down the proceeds from the sale before being eligible to qualify for Medicaid benefits to pay for nursing home care.  The important point to remember is that information you may receive from friends or neighbors who have gone through the Medicaid qualifying process in another state may not be applicable in Florida.  That's one of the reasons why it is so important for you to consult with a Florida elder law attorney when contemplating alternatives for paying for long term care, and Medicaid planning for nursing home benefits in particular.

6.    Can Medicaid take my assets after I die?

The probate assets of a deceased person who received Florida Medicaid benefits to pay for nursing home costs are at risk of being taken by the state of Florida to repay for Medicaid benefits provided through a process called Medicaid recovery. Thorough consideration of Florida Medicaid estate recovery should be part of good Medicaid spenddown planning by a Florida elder law attorney.  Careful review of beneficiary designations for life insurance policies, retirement plans, and the titling of real property, is necessary to avoid any assets going through probate.  If the assets are transferred at death without probate, then those assets will likely not be subjected to Medicaid recovery by the State of Florida.

Any funds remaining in a qualified income trust at the death of the person receiving Medicaid benefits are subject to Medicaid recovery by the State of Florida.

7.    What are some of the tools and techniques of Medicaid spenddown planning that are used to legally preserve and protect assets from nursing home costs?

There are a number of tools and techniques that are legally allowable to preserve and protect assets from nursing home costs through a properly designed Medicaid spenddown plan.  Some of those tools, with brief descriptions, include:

 a.    Personal Care Services Contracts

                 A personal care contract, or personal services contract, is a written contract between the elderly person who resides in a nursing home and a family member, or other third party, whereby the family member/third party agrees to provide personal care services to the nursing home resident in return for compensation.  The compensation provided by the personal care contract or personal services contract must be reasonable and comparable to what it would costs to hire someone unrelated to the nursing home resident to perform the same or similar services.  The personal care contract must be in writing, and must specify the specific services that the family member/third person has agreed to provide.  Compensation for the personal services contract or personal care contract may be paid in a lump-sum in advance, or in some cases  can be spread over the remaining life expectancy of the nursing home resident.  The requirements for such a contract are detailed, and the assistance of an experienced elder law attorney is recommended.

b.    Special Needs Pooled Trusts

                 A special needs pooled trust must be administered by a recognized non-profit organization.  The use of a pooled trust allows the nursing home resident to transfer money to the pooled trust and then have funds from the pooled trust available for the resident's needs that are not met by the nursing home or Medicaid.  Those needs can range from such things a computers, clothing, personal services (manicures, pedicures, beauty salon, etc.), travel, meals, etc.  Any sums remaining in the pooled trust at death either must be paid to the state or left in the pooled trust for the benefit of other incapacitated persons or nursing home residents.

c.    Medicaid Qualifying Annuities

                 In certain circumstances, typically where the community spouse has assets above the allowable limit, those funds in excess of the allowable limit can be used to purchase a Medicaid qualifying annuity for the community spouse.  The effect of the using the funds to purchase an annuity is that the community spouse has converted a countable asset into a stream of income, which may allow the institutional spouse to immediately qualify for Medicaid benefits to pay for nursing home costs.

d.    The Purchase of Income Producing Real Property

                 If certain requirements are met, an elderly person seeking to qualify for Medicaid benefits to pay for skilled nursing home care may use funds above the allowable limit for countable assets to purchase income producing real property.  There are many issues involved with the purchase of income producing real property, including titling of the real property and managment of the property, and the net income derived from the rental of the property must be paid over to the nursing home as part of the nursing home resident's patient's responsibility under the Medicaid law.  However, where there are substantial assets owned by the elderly person seeking eligibility for Medicaid benefits, this may be the only option that allows the protection of all, or substantially all, of the funds.

e.    The Purchase of a Homestead

                 As indicated above, the homestead is an exempt asset in Florida, up to $500,000 of equity.  If the elderly person seeking Medicaid benefits has the opportunity to reside in the home prior to becoming a resident of the skilled nursing facility, then funds above the allowable asset level can be used to purchase a homestead.

 f.    The Purchase of Other Exempt Assets

                 There are other alternatives that involve the purchase of exempt assets with funds that would otherwise be above the allowable limit for Medicaid benefits eligibility.

g.    Repayment of Existing Debt

                 An elderly person's assets can be used to pay existing debt of the elderly person without interfering with the elderly person's eligiblity for Medicaid benefits to pay for nursing home care.

h.    Spousal Refusal or Assignment of Rights to Support

                Florida currently allows one spouse to refuse to provide financial support for the nursing home care of the other spouse.  The State of Florida is legally entitled to seek recovery of the Medicaid benefits paid on behalf of the institutional spouse from the community spouse, but so far has not elected to pursue that course of action.

         In addition to those tools and techniques outlined above, there are many other options that can be explored based upon the facts and circumstances of your particular situation and the needs you have for your family members and loved ones.  A consultation with an experienced elder law attorney or Medicaid planning lawyer can help you identify, decide upon, and implement the tools and techniques that are most appropriate for you and yoru family.


There are many options available to protect and preserve assets for an elderly person's personal needs, and to provide financial support for a community spouse, and other family members who provide support for the elderly family member who is in a skilled nursing home.  The legal rules and regulations that control what can be done, and how it can be done, are very detailed, complex, very confusing, and easily violated.  With the assistance of an experienced elder law attorney or Medicaid planning lawyer, substantial assets can be preserved and protected for the family.

If you, or a loved one, or family member, needs long term care or Medicaid spenddown planning,
please contact the Jacksonville, Florida elder law attorneys and Medicaid planning lawyers at The Coleman Law Firm so that we can assist you in protecting your assets from an unnecessary spend down, and allow you to protect as many assets as legally possible from nursing home costs, through proper Medicaid planning.

The information contained above is general in nature and subject to change frequently with changes to Federal and Florida Medicaid law, court cases, fair hearings, and many other actions that may impact your particular circumstances.  You should consult an
experienced Florida elder law attorney or Medicaid planning lawyer to assist you when seeking elgibility for Florida Medicaid benefits.  For additional information you may want to review our companion website

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